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THE  CONSTITUTION 

■ ' 

OF  THE 

UNITED  STATES 

DEFINED  AND  CAREFULLY  ANNOTATED. 


BY 

* GEORGE  W.  PASCHAL,  LL.D., 

AUTHOR  OF  “PASCHAL’S  ANNOTATED  DIGEST,”  “A  TREATISE  ON  CHARITABLE  USES,”  “DIGEST  OF 

DECISIONS,”  ETC.,  ETC. 


"WASHINGTON,  D.  C.: 

W.  H.  & O.  H.  MORRISON,  LAW  BOOKSELLERS, 

PUBLI8HEE8,  IMPORTERS,  AND  STATIONERS. 

1876. 


/ 


\ 


Entered  according  to  Act  of  Congress,  in  the  year  1876,  by 
GEORGE  W.  PASCHAL, 

in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


/ 


■JK 

IHi’ 

, Pzy 

mu 


TO  THE 

PEOPLE  OF  THE  UNITED  STATES, 

THIS  WORK 

IS  RESPECTFULLY  DEDICATED  BY  ONE 
WHOSE  MOTTO  THROUGH  LIFE  HAS  BEEN 

“Sfta  ml  tta  Itotau” 

GEORGE  W.  PASCHAL, 

OF  TEXAS. 


New  York,  1S6S. 


PREFACE. 


The  Editor  offers  no  apology  for  presenting  to  the 
pnblic  an  annotated  copy  of  the  Constitution  of  the 
United  States.  All  men  have  fully  realized  the  maxim, 
“that  the  next  best  thing  to  knowledge  is  know 
where  to  find  it.”  If,  therefore,  my  book  shall  serve 
as  a guide  to  useful  and  important  information,  a good 
work  will  have  been  accomplished.  But  it  is  believed 
that  something  better  than  the  mere  collection  of 
copious  references  has  been  attained.  The  best  defini- 
tions of  every  word  and  phrase  have  been  given,  upon 
the  very  highest  authorities.  The  utility  of  such  a 
success,  if  success  it  be,  cannot  be  over-estimated. 

The  roots  of  the  Constitution  of  the  United  States 
may  be  said  to  have  been  laid  in  the  great  principles 
of  the  English  Constitution,  which  divided  government 
into  three  separate  departments,  and  which,  from  time 
to  time,  secured  the  absolute  and  subordinate  rights  of 
every  subject,  upon  the  firm  basis  of  Magna  Charta 
and  the  Petitions  and  Bills  of  Rights,  and  other  guar- 
anties of  liberty.  These  principles  were  transplanted 


VI 


PREFACE. 


by  our  ancestors  into  the  American  colonies.  They 
were  proclaimed  in  the  Declaration  of  Independence, 
which,  in  this  edition,  precedes  the  great  work  of  our 
fathers  ; and  they  were  re-incorporated  into  all  the  State 
Constitutions  pending  the  Revolution.  Therefore,  the 
division  of  the  powers  of  government  into  three  depart- 
ments— legislative,  executive,  and  judicial — was  the 
formation  of  a structure  upon  established  models. 

From  the  days  of  the  promulgation  of  the  Constitu- 
tion of  the  United  States  to  the  present  hour,  it  has 
been  a subject  of  constant  discussion.  All  that  was 
preserved  of  the  debates  of  the  wise  men  of  the  Con- 
ventio%which  modeled  it,  and  of  the  State  Conven- 
tions which  ratified  it ; all  that  was  said  by  the  writers, 
such  as  the  authors  of  the  Federalist,  and  the  press  of 
that  day,  has  been  republished,  and  forms  a popular 
portion  of  our  current  literature. 

Rawle,  Sergeant,  Story,  Baldwin,  Duane,  John 
Adams,  and  Farrar,  have  written  their  commentaries 
upon  the  Constitution  ; Curtis  his  excellent  history  of 
it ; Calhoun  his  essay,  giving  the  peculiar  views  of  his 
school  upon  concurrent  powers  ; Chancellor  Kent  de- 
voted the  best  book  in  his  great  work  to  its  elucida- 
tion ; all  our  reports  of  judicial  precedents  abound 
with  interpretations  of  it ; the  published  opinions  of 
learned  Attorney-Generals  have  guided  cabinets  ; the 
debates  of  all  deliberative  bodies  are  interspersed  with 
closely  studied  or  loosely  expressed  ideas  in  regard  to 
it ; every  political  editor  and  orator  become  its  expos- 


PREFACE. 


• • 
vu 

itors  ; it  is  taught  in  all  our  law  schools  and  many  of 
our  colleges,  and  forms  a chapter  in  the  studies  of  all 
candidates  for  the  bar ; all  officers  are  sworn  to  support 
it ; every  soldier  and  sailor  in  the  late  war  took  a like 
oath  as  a condition  of  enlistment ; all  amnestied  and 
pardoned  rebels  have  been  required  to  take  oaths  to 
support  and  defend  the  Constitution  and  the  Union 
thereunder  ; and,  in  those  States  which  resisted  it,  no 
one  is  admitted  to  be  registered  as  a voter,  without 
taking  the  most  solemn  oath  to  the  like  effect ; every 
naturalized  foreigner  is  required  to  swear  allegiance  to 
it ; the  oaths  thus  administered,  as  the  ligament  or  tie  of 
allegiance,  are  naturally  binding  upon  every  native- 
born  citizen  in  the  country.  And  now,  although  the 
sacred  instrument  has  been  published  in  every  revision 
of  laws  in  the  United  States,  in  the  Manuals  of  Con- 
gress, and  by  tens  of  thousands  in  that  excellent  vade- 
mecum  by  Mr.  Hickey,  we  hazard  nothing  in  saying 
that  the  Constitution  is  not  conveniently  accessible  to 
one  in  one  hundred  of  the  people  whose  duty  it  is  to 
read  it.  It  is  not  even  a book  in  all  our  public  libra- 
ries ; it  is  not  in  one  house  in  fifty ; it  is  nowhere  on 
the  catalogue  of  school-books  ; and  it  is  not  taught  in 
one  school  in  a thousand.  There  is  a kind  of  popular 
fallacy  that  everybody  understands  the  Constitution  of 
his  country,  when,  truth  to  confess,  comparatively  few 
have  ever  read  it  at  all,  and  still  fewer  have  studied  it 
carefully.  And  if  the  tenure  of  office  depended  upon 
the  ability  to  stand  a careful  examination  upon  it, 


yiii 


PREFACE. 


there  would  be  enough  vacancies  to  satisfy  whole 
armies  of  “ outs”  who,  in  turn,  could  not  take  the 
oath  to  support  it,  were  the  previous  test  of  ability  to 
give  all  its  features  applied. 

It  is  in  no  spirit  of  disparagement  that  we  make  this 
admission.  Perhaps  the  same  remark  is  applicable,  to 
a greater  or  less  extent,  to  every  civilized  people. 
There  is  too  great  a disposition  among  men  to  take 
essential  things  for  granted.  And  yet  when  the  philo- 
sophical historian  comes  to  review  the  downfall  of 
republics  and  empires,  he  is  forced  to  the  conclusion 
that  the  loss  of  liberty  is  more  the  result  of  ignorance 
of  the  fundamental  principles  of  government  than  of 
apathy  in  defending  them.  The  most  exciting  political 
contests  which  have  divided  this  nation  have  been  the 
results  of  political  dogmas  founded  in  willful  or  actual 
ignorance  of  the  cardinal  principles  of  the  Constitution. 

A recurrence  to  “ Americans  shall  rule  America the 
“ repeal  of  the  naturalization  laws,”  as  a means  of  les- 
sening suffrage  ; religious  tests;  “squatter  sovereign- 
ty,” and  its  opposite,  need  only  be  cited  in  illustra- 
tion. Yet  these  were  harmless  polemics  compared  to 
the  heresy  of  that  peculiar  school  of  “ State  sove-  ' 
reignty,”  which  taught  that  the  States  had,  in  fact, 
surrendered  nothing,  but  had  only  delegated  certain 
powers,  in  trust,  to  a common  agent ; and  that  any 
State  could,  at  any  time,  for  any  cause,  or  no  cause, 
resume  the  delegated  powers,  and  again  peaceably 
take  its  place  among  the  nations  of  the  earth. 


PREFACE. 


IX 


In  such  a "book  as  I have  prepared,  and  designed,  as  it 
is,  for  general  use,  and  put  forward  to  meet  the  wants 
of  the  millions,  it  is  not  intended  to  advocate  or  con- 
demn any  doctrine  in  an  offensive  manner.  My  own 
views  of  the  government  were  formed  after  an  exam- 
ination of  all  the  lights  accessible  to  me,  from  1830  to 
1834.  The  doctrines  of  Nullification,  or  the  right  of 
a State  to  nullify,  declare  void,  and  resist  a single  law 
of  the  United  States,  and  yet,  as  to  all  other  laws,  to  he 
in  harmony  with  the  Union,  were  then  the  issues. 
From  my  Southern  stand-point,  I was  compelled  to 
examine  the  doctrines  with  all  the  prejudices  of  intel- 
ligent surroundings  and  motives  of  interest  in  favor  of 
the  Southern  view.  Opposition  to  a protective  tariff ; 
State  pride ; the  apprehensions  upon  the  subject  of 
negro  slavery,  which  the  Missouri  restriction  had  left, 
and  the  incipiency  of  abolitionism  foreshadowed,  natu- 
rally inclined  all  ardent  young  men  to  embrace  the  doc- 
trines of  the  Virginia  and  Kentucky  Resolutions,  and 
the  inviting  school  of  “States  Rights.”  But,  on  the 
other  hand,  we  had  the  most  prominent  author  of  these 
reports  and  resolutions,  and,  indeed,  the  chief  architect 
of  the  Constitution  itself  (Mr.  Madison),  telling  us  that 
“Nullification  and  Secession  had  the  same  poisonous 
root.”  And  we  had  the  weight  and  power  of  General 
Jackson’s  name  and  his  iron  will,  standing  upon  the 
doctrines  of  that  great  expounder,  Daniel  Webster. 
I was  obliged  to  take  my  position  as  a lawyer,  as  well 
as  a lover  of  my  country,  with  those  who  held  that 


X 


PREFACE. 


the  Constitution  had  created  a government,  not  a mere 
agency  or  compact ; an  enduring  union,  not  a league 
dissoluble  at  the  pleasure  of  any  State  ; a government 
of  limited  powers,  to  he  sure,  hut  yet  having  all  the 
inherent  powers  necessary  to  protect,  defend,  and  per- 
petuate the  Union.  These  views  have  heen  greatly 
strengthened  hy  a life-long  study  of  the  principles  and 
practical  workings  of  the  government.  And  they  car- 
ried along  my  convictions,  that,  as  a citizen  of  the 
United  States,  I owed  my  first  and  paramount  alle- 
giance to  the  nation,  and  not  to  the  State  of  Georgia, 
where  I was  horn,  and  came  to  the  har,  nor  to  the  States 
of  Arkansas  and  Texas,  where  I afterward  chanced  to 
reside,  and  which  have  heen  the  theaters  of  the  little 
which  has  marked  my  unamhitious  public  career  ; nor 
yet  to  ISTew  York,  where  now  I exercise  my  profession. 

I can  most  simply  illustrate  these  views  hy  the  exam- 
ple of  Texas.  That  Republic,  from  1836  to  1846,  was 
independent  and  sovereign.  It  possessed  the  powers 
of  national  taxation,  commerce,  coining  money,  grant- 
ing patents,  punishing  piracies,  enforcing  admiralty, 
declaring  war,  raising  and  supporting  armies  and 
navies,  making  treaties,  forming  alliances  and  confed- 
erations, being  represented  hy  ministers  abroad,  and 
changing  the  republic  to  a dynasty,  with  princes  and 
orders  of  nobility.  In  fact,  Texas  had  the  lawful  right 
to  do  all  that  free,  independent,  and  sovereign  States 
may  do.  But  by  annexation  these  people  became  citi- 
zens of  the  United  States.  As  a government,  they  sur- 


PREFACE. 


XI 


rendered  or  merged  every  vestige  of  nationality.  They 
lost  these  rights  to  regulate  commerce  ; to  coin  money 
and  prescribe  tenders  ; to  declare  war  and  make  peace  ; 
to  naturalize  foreigners ; to  decitizenize  any  citizen  of  the 
United  States,  and  to  exercise  every  enumerated  and 
non-enumerated  national  power.  In  consideration  of 
this  surrender  of  power,  all  Texans,  of  whatever 
nationality,  became  citizens  of  the  United  States,  enti- 
tled to  all  the  benefits,  privileges,  immunities,  protec- 
tion, and  blessings  of  the  Union.  And,  when  compared 
to  the  previous  impoverished  State  of  Texas,  these 
blessings  were  incalculable. 

With  these  convictions,  both  as  to  principle  and 
policy,  I could  never  viewthe  ordinances  of  secession 
in  any  other  light  than  as  revolution — resistance  to 
lawfully  constituted  authority,  without  any  apprecia- 
ble justification.  In  anticipation  of  the  mad,  because 
excited  effort,  I prepared  a treatise  upon  the  doctrines 
of  secession.  But  the  crash  was  so  sudden,  that  it 
smothered  my  effort  before  it  reached  the  public  eye. 
None  shaken  in  my  views,  with  the  commencement  of 
the  terrible  civil  war,  the  fearful  consequences  of  which 
I publicly  foretold,  not  in  any  spirit  of  prophecy,  but 
because  they  were  the  legitimate  fruits  of  the  efforts  to 
sever  such  a government,  I sat  down  to  compile  the 
“Annotated  Digest”  upon  the  laws  of  Texas,  and  the 
Spanish  laws,  upon  which  many  land-titles  within  half 
the  area  of  the  Union  rested.  I selected  a provincial 
work,  because  long  years  of  practice  had  forced  me  to 


XU 


PREFACE. 


collect  the  materials.  The  Constitution  of  the  United 
States  formed  a single  chapter ; and  because  Frederick 
W.  Brightley,  Esq.,  had  kindly  permitted  me  to  use 
his  exhaustive  notes,  my  annotations  were  not  the  most 
labored  chapter  in  the  book.  I did  little  more  than 
add  to  his  very  accurate  references,  bringing  the  notes 
down  to  1865,  re-arrange,  number,  and  “cross-note” 
them,  so  as  to  connect  the  subjects  with  other  kindred 
matter  in  my  own  digest.  Yet  I have  received  so  many 
high  testimonials  of  the  convenience  of  arrangement 
and  the  great  value  and  accuracy  of  the  references,  that 
I have  determined  to  put  forth  this  little  volume  upon 
the  same  plan  of  the  “Annotated  Digest,”  with  the 
commendations  and  approval  of  which  I have  had  so 
many  reasons  to  be  proud. 

Upon  the  suggestions  of  some  popular  school-men, 
the  plan  of  authoritative  definitions  and  side  questions 
has  been  adopted.  While  then  the  work  will  be  an 
exhaustive  reference-book  for  the  lawyer,  the  judge, 
the  statesman,  the  publicist,  the  editor,  and  the  politi- 
cal writer  (who  should  always  have  such  a work  upon 
their  tables),  it  is  hoped  that  it  may  also  prove  a popu- 
lar text-book  for  all  our  schools ; or,  if  this  fond  antici- 
pation shall  fail,  I trust  that  some  more  experienced 
hand  may  be  led  to  prepare  a text-book  which  may 
become  as  popular  in  its  appropriate  place  as  was  ever 
Webster’s  spelling-book. 

Let  us  remember  that  we  have  four  millions  of  freemen 
who  have  been  constitutionally  made  citizens  of  the 


PKEFACE. 


xiii 


United  States,  in  whose  behalf  the  fundamental  charter 
has  been  amended,  few  of  whom  can  yet  read  the  in- 
strument which  guaranteed  their  liberties,  in  common 
with  others  of  their  fellow-citizens.  We  have  three 
hundred  thousand  lovers  of  liberty  coming  every  year 
to  our  shores ; and  we  have  millions  of  native-born 
children,  in  rural  districts  and  in  cities,  to  whom  the 
Constitution  is  not  accessible.  The  course  of  safety,  and 
of  the  preservation  and  perpetuation  of  liberty,  would 
demand  that  Congress  should  adopt  some  well-arranged 
Manual  upon  the  Constitution,  and  distribute  it  among 
the  people.  None  occurs  to  the  author  as  better  than 
that  which  defines  every  phrase,  and  points  to  every 
higher  authority  which  has  discussed  it,  and  which  has 
an  index  so  copious  that  none  can  be  misled. 

I beg  all  readers  to  believe  that  the  political  bias 
hereinbefore  expressed  has  had  no  influence  in  the 
preparation  of  the  notes.  They  have  been  given, 
honestly,  as  they  were  found  in  the  authorities.  If 
any  light  has  been  overlooked,  it  has  been  accidental, 
* and  the  omission  will  be  repaired  in  the  future  editions. 

There  are  some  great  facts  which  the  strongest  preju- 
dices cannot  overlook.  The  efforts  to  establish  the 
doctrines  of  secession  in  the  name  of  State  sovereignty 
have  tested  the  strength  of  the  Union ; and  whether 
doubtful  powers  have  been  rightfully  or  wrongfully 
exercised,  they  have  been  so  exercised  as  to  become 
estoppels  upon  the  whole  people.  The  Southern 
school  started  upon  the  theory  that  the  “ common  de- 


xiv 


PREFACE. 


fense  and  general  welfare”  guaranties  must  be  stricken 
out  of  the  Constitution.  And  while  they  retained  the 
great  landmarks,  and  almost  the  identical  language, 
the  idea  of  national  internal  improvements  and  pro- 
tective tariffs  was  forbidden ; slavery  was  attempted  to 
be  perpetuated  ; and  our  “Rights  in  the  Territories” 
were  so  clearly  defined,  that  the  people  thereof  could 
not  protect  themselves  by  their  own  wholesome  legis- 
lation. But  a single  year  of  war  found  the  anti-in- 
ternal improvement  States-Riglits  Government  making 
railroads,  and  in  possession  of  all  the  railroads  and 
other  means  of  transportation  in  the  States,  enforcing 
general  conscription,  impressments,  martial  law,  and 
almost  subsidizing  the  States  which  had  confederated 
themselves.  And  as  to  “ new  States,”  Kentucky  and 
Missouri  were  represented  at  Richmond,  while  the  gov- 
ernments thereof  were  firm  to  the  Union.  In  a word,  the 
plea  of  necessity  afforded  an  excuse  for  every  exercise 
of  power.  So,  in  the  efforts  to  put  down  the  rebellion, 
the  military  power  was  pushed  far  beyond  the  most 
ulterior  centralizing  ideas,  and  every  obstacle  which 
stood  in  the  way  of  preserving  the  life  of  the  nation 
was  easily  removed.  West  Virginia  was  admitted  as 
a State  of  the  Union,  upon  the  same  principle  that  Ken- 
tucky and  Missouri  were  admitted  as  States  of  “the 
Confederate  States  of  America ;”  that  is,  because  the 
minority,  who  acknowledged  their  allegiance  to  the 
central  Government,  were  recognized  as  the  lawful 
State  governments.  It  has  thus  become  established, 


PREFACE. 


XV 


that  the  powers  to  suppress  insurrection  and  to  crush 
rebellion,  and  the  obligation  to  guarantee  a republican 
form  of  government,  carry  along  the  right  to  recog- 
nize none  but  the  State  government  in  harmony  with 
the  Union  as  a lawfully  existing  State.  Such  is  the 
clear  theory  of  President  Johnson’s  proclamations, 
setting  aside  State  governments  and  appointing  new 
magistracies;  such  the  theory  of  Congress  in  passing 
the  reconstruction  laws  ; and  such  were  the  precedents 
in  Richmond,  which  are  binding  upon  the  “ engineers 
hoist  by  their  own  petards.” 

Therefore,  the  doctrines  of  “States  Rights”  seem  to  be 
narrowed  down  to  the  practical  theory,  that  when  all 
State  officials  cease  to  acknowledge  the  Constitution  of 
the  United  States,  and  the  laws  and  treaties  made  in 
pursuance  thereof,  as  the  “supreme  law  of  the  land,” 
and  the  great  mass  of  the  people  sustain  them  in  rebel- 
lion, they  so  far  lose  their  positions  as  States,  as  to 
leave  the  means  of  restoration  to  the  law-making  power 
of  the  Union,  after  amendments  forming  conditions  of 
security  shall  have  been  superadded.  Such  are  always 
the  fruits  of  unsuccessful  revolution. 

These  things  are  said  in  the  interest  of  no  partisan 
view.  I would  only  exhort  all  men,  and  all  children, 
to  consider  the  Constitution  of  the  United  States  as 
perpetual ; to  carefully  study  its  every  word  and 
phrase,  and  the  spirit  and  intention  of  every  clause. 
And,  above  all,  never  to  engage  in  its  discussion  with- 
out a clear  comprehension  of  every  word  employed  in 


XVI 


PREFACE. 


regard  to  it ; and  to  trust  no  man  nor  journalist  as  an 
expounder  who  misquotes  its  language,  and  shows  a 
real  or  willful  ignorance  of  its  provisions.  Such  teach- 
ers are  the  "blind  leading  the  "blind. 

The  Constitution  has  created  no  authoritative  ex- 
pounder. Every  exposition  has,  at  last,  to  come  to  the 
test  of  popular  opinion.  How  important,  then,  that 
the  public  judgment  shall  be  enlightened.  As  the  war 
has  stricken  human  slavery  out  of  the  Constitution,  we 
all,  in  some  sort,  stand  upon  a new  era  in  regard  to 
the  protective  principles  and  the  guaranties  of  liberty 
which  it  contains.  And  yet  it  is  the  order  of  the 
human  mind,  under  all  dispensations,  to  consult  pre- 
cedents ; to  allow  them  always  to  be  persuasive,  and 
generally  controlling.  In  this  light  every  citation  in 
this  little  book  has  its  value. 

The  Editor  does  not  claim  perfection  even  in  refer- 
ences, or  the  extent  of  research.  And  as  it  is  intended 
to  keep  the  work  up  as  long  as  new  editions  are 
demanded,  he  would  be  very  thankful  for  any  sugges- 
tion of  errors  or  omissions.  The  effort  is  an  experi- 
ment. All  who  will  weigh  the  great  problem  of 
liberty,  will  acknowledge  the  importance  of  educating 
every  mind  in  the  true  principles  of  our  government. 
This  can  only  be  done  by  precept  upon  precept,  line 
upon  line,  here  a little  and  there  a little.  If  the  zeal 
and  anxiety  of  the  Editor  is  great,  let  his  apology  be, 
that  he  has  suffered  keenly  from  the  intolerance  grow- 
ing out  of  ignorance  of  the  true  principles  of  constitu- 


PREFACE. 


xvii 


tional  liberty,  and  the  reckless  depravity  in  regard  to 
their  preservation.  His  moral  duty,  in  the  direction 
of  enlightenment,  is  therefore  great. 

GEO.  W.  PASCHAL,  of  Texas. 
No.  26  Exchange  Place , New  York. 

(2) 


PREFACE  TO  SECOND  EDITION, 


Many  causes  have  combined  to  delay  the  publication  of  the 
revised  edition  of,  and  supplement  to,  this  work.  The  editor's 
labors  in  other  fields  have  become  known  to  the  public.  The 
publication  of  eleven  large  volumes,  which  have  received  the 
approbation  of  the  profession,  and  the  labored  revisions  of 
some  of  these,  together  with  a varied  practice,  have  delayed 
the  final  preparation  of  a work  which  ought  to  have  employed 
his  whole  time.  Indeed,  a careful  and  thorough  annotation 
of  the  Constitution  of  the  United  States  would  require  the 
continuous  study  of  an  industrious  life.  The  history  of  the 
Constitution  is  the  history  of  the  nation;  - and  its  thorough 
criticism  would  be  the  repetition  of  the  indoctrinations  of  the 
thinking  minds  of  the  age.  Nevertheless,  the  kind  reception 
and  general  commendation  which  this  production  has  received 
have  encouraged  the  author  to  increased  labor  and  expense. 
No  week  has  been  passed,  indeed,  few  days,  without  some 
additions  being  made.  To  cut  these  amendments  down  to 
readable  length  has  been  the  greatest  labor.  This  has  not 
been  so  practicable  in  the  Appendix  as  in  the  original  text. 

When  the  first  edition  of  this  book  appeared,  the  Constitu- 
tion was  undergoing  a severe  strain.  The  reconstruction 
laws,  which  had  resulted  from  the  mad  efforts  at  secession, 
had  not  completed  the  work  of  rehabilitating  the  Union ; the 
fourteenth  amendment,  consequent  upon  the  destruction  of 
slavery,  had  not  received  the  ratification  of  the  necessary 
number  of  States;  the  fifteenth  amendment  had  only  been 
thought  of  by  a few  advanced  minds;  the  differences  between 
the  executive  and  Congress  threatened  the  peace  of  the  coun- 
try ; the  events  of  the  seven  preceding  years  had  sown  a vast 

(xix) 


XX 


PREFACE  TO  SEUOND  EDITION. 


crop  of  litigation  involving  constitutional  questions ; the  con- 
dition of  the  newly-emancipated  population  had  not  been 
settled;  the  passions  of  the  five  years  of  civil  war  were  far 
from  being  allayed;  and  the  minds  of  millions  of  active  men 
were  revolutionary,  and  only  needed  seductive  leadership  to 
change  the  whole  organization  of  our  Government.  But  the 
work  of  reconstruction  has  been  accomplished;  the  new  amend- 
ments have  not  only  been  adopted  by  recognized  form,  but 
the  nation,  by  popular  platforms,  has  become  pledged  to  their 
support;  and  what  is  better,  they  have  been  construed  to  the 
general  satisfaction  of  the  country;  a sense  of  popular  liberty 
is  gradually  recovering  ground;  and  there  is  greater  uniform- 
ity as  to  popular  suffrage  than  at  any  former  period  in  our 
history. 

It  cannot  be  disguised,  that  our  people  are  studying  the 
Constitution  and  its  foundations  with  greater  accuracy  and 
a more  intelligent  understanding  of  the  true  character  of  our 
complicated  governments. 

Nevertheless,  much  yet  remains  to  be  done.  The  Consti- 
tution has  to  be  taught  in  all  our  schools,  and  taught  by 
thousands  who  have  yet  to  acquire  its  rudiments.  This  work 
has  been  found  a useful  instrumentality  in  that  direction. 
The  new  matter  must  greatly  increase  its  usefulness. 

To  embody  the  new  interpretations  an  Appendix  has  been 
found  necessary.  This  may  cause  occasional  repetitions  and 
some  contradictory  authorities.  But  it  should  be  remembered 
that  there  can  never  be  a fixed  standard  for  the  Constitution. 
It  is  continually  undergoing  official  interpretation;  and  the 
only  mode  of  reaching  the  truth  is  by  the  comparison  of  ideas 
and  practical  results.  The  Appendix  should  always  be  read 
as  a part  of  the  text.  Where  there  is  doubt,  let  the  student 
consult  the  references. 

The  book  having  been  introduced  into  many  of  our  best 
academical  institutions,  its  future  success  is  assured. 

George  W.  Paschal. 


Washington,  D.  C.,  May  1,  1876. 


LECTURE 


DELIVERED  TO  THE 

AMERICAN  UNION  ACADEMY 

OF 

LITERATURE,  SCIENCE,  AND  ART, 


AT  ITS  SPECIAL  MEETING  CALLED  FOR  THE  PURPOSE,  MARCH  7,  1870, 

BY 

HON.  GEORGE  W.  PASCHAL, 

AUTHOR  OF  “PASCHAL’S  ANNOTATED  CONSTITUTION,”  ETC. 

Printed  by  Order  of  the  Academy. 

[COPYRIGHT  SECURED.] 


WASHINGTON,  D.  C.: 

W.  H.  & O.  H.  MORRISON, 
1871. 


LECTURE 

DELIVERED  TO  THE  AMERICAN  UNION  ACADEMY  OF  LITERA- 
TURE, SCIENCE,  AND  ART,  AT  ITS  SPECIAL  MEETING 
CALLED  FOR  THE  PURPOSE,  MARCH  7,  1870. 

BY 

HON.  GEORGE  W.  PASCHAL, 

AUTHOR  OF  “ PASCHAL’S  ANNOTATED  CONSTITUTION,”  ETC. 

Printed  by  Order  of  the  Academy. 

Gentlemen  of  the  Academy, — I propose  delivering  a 
lecture  upon  the  Constitution  of  the  United  States,  as  it  is.  I 
am  aware  of  the  difficulty  of  the  theme.  Its  very  familiarity, 
real  and  imaginary,  admonishes  me  that  no  one  expects  any 
thing  novel.  But  however  trite  the  subject,  few  lawyers  or 
statesmen  would  be  prudent  to  risk  a critical  examination  upon 
the  great  charter.  And  the  small  number  who  can  repeat  it 
from  memory,  are  well  aware  that  its  every  word  and  phrase 
have  been  the  subjects  of  angry  debate,  and  schools  do  not  yet 
agree  upon  any  uniform  interpretation.  And  while  the  im- 
pression is  general,  that  recent  amendments  have  made  great 
changes,  very  few  have  stopped  to  think  of  the  real  revolution 
in  our  government. 

The  last  ten  years  have  covered  a period  of  eventful  history 
in  our  own  country  and  in  the  world.  Among  all  the  monu- 
ments which  mark  that  heroic  era,  there  are  none  which  have 
been  so  mighty  in  their  effects  and  will  so  long  endure,  as  the 
amendments  to  the  Constitution  of  the  United  States. 

It  has  always  been  a favorite  maxim  with  me,  that  in  the 
xxiii 


XXIV 


LECTURE  BY  THE  AUTHOR. 


study  of  the  law,  there  can  be  no  comprehensive  understanding, 
without  a careful  analysis  of  the  old  law, — the  mischief  and  the 
remedy.  The  law  of  the  present  concerns  us  most ; but  until 
we  dig  deep,  explore  the  foundations  and  understand  that  of 
the  past,  we  can  have  no  clear  conception  of  that  which  is  act- 
ually in  force. 

Viewing  my  task  from  this  stand-point,  I will  advert  to  the 
organic  amendments  as  they  bear  upon  the  instrument  as  it 
was,  before  they  were  engrafted  upon  it,  and  so  enlarged  the 
powers  of  the  nation,  abridged  those  of  the  States,  and  in- 
creased and  secured  the  liberties  of  the  people.  The  amend- 
ments known  as  the  thirteenth,  and  the  first  and  second  sections 
of  the  fourteenth,  and  also  the  fifteenth  should  be  read  as 
pari  materia  of  the  same  law.  Although  of  different  dates  they 
are  logically  and  necessarily  connected,  and,  taken  together, 
they  very  radically  change  the  original  theory  of  the  govern- 
ment. 

I will  read  them  in  this  logical  connection. 

44  Amendments  to  the  Constitution . 

“ Art.  XIII.,  Section  1.  Neither  slavery  nor  involuntary  ser- 
vitude, except  as  a punishment  for  crime,  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.” 

“ Art.  XIV.,  Section  1.  All  persons  born  or  naturalized  in 
the  United  States  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States ; nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
laws. 

44  Section  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting 


LECTURE  BY  THE  AUTHOR.  XXV 

the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice-President  of  the 
United  States,  representatives  in  Congress,  the  executive  and 
judicial  officers  of  a State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in  re- 
bellion or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State.” 

“ Art . XV.,  Section  1.  The  right  of  the  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude.” 

To  each  of  these  is  added, 

“ Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate  legislation.”  Thus  the  power  to  execute  is  as  broad  as 
the  subject-matter.  And  the  means  to  be  employed  may  be 
all  that  are  necessary  and  proper,  either  to  enforce  the 
national  power,  restrain  the  States,  or  to  protect  the  citi- 
zens. 

A glance  at  the  history  which  produced  these  great  results 
is  an  inviting  field  ; but  it  would  be  the  history  of  the  govern- 
ment itself.  The  word  “ slavery  ” is  here,  for  the  first  time, 
introduced  into  the  Constitution.  But  as  a fact  it  was  acknowl- 
edged in  the  contrast  to  “ free  persons,”  and  the  “ two-fifths 
of  all  other  persons,”  in  the  basis  of  representation  now  supplied 
by  a new  clause  ; in  the  “ importation  of  such  persons  ” as  any 
of  the  States  originally  existing  should  think  proper  to  admit 
for  a period  of  twenty  years  ; in  the  “ persons  held  to  service 
in  one  State  escaping  into  another,”  and  in  the  prohibition  to 
amend  so  as  to  prohibit  the  importations  of  “ such  persons  ” 
until  1808.  Thus  our  fathers  shrank  from  the  mention  of  the 


XXVI 


LECTURE  BY  THE  AUTHOR. 


word,  so  at  war  with  the  enlarged  idea,  that  “ all  men  are 
created  free  and  equal,”  for  which  they  had  fought,  as  a self- 
evident  proposition ; but  they  did  not  hesitate  to  incorporate 
three-fifths  of  them  into  the  representation,  giving  an  increased 
power,  without  any  of  the  moral  responsibility  which  should 
ever  exist  between  representatives  and  constituents ; to  provide 
for  their  increase  by  licensing  the  barbarous  and  inhuman 
traffic  in  them,  without  the  possibility  of  removing  the  moral 
taint  for  the  fifth  of  a century ; and  by  entering  into  a solemn 
compact  among  the  States  to  surrender  those  who  should 
endeavor  to  escape  from  their  servitude. 

Far  be  it  from  me  to  censure  those  who  thus  dealt  with 
great  facts  as  they  were.  The  States  were  free  to  agree  to 
this  “ more  perfect  union  ” or  not  as  they  chose ; and  as  the 
union  could  not  have  been  formed  without  this  compromise, 
he  is  a bold  man  who  will  now  say  that  it  would  have  been 
better  had  it  never  been  created. 

The  time  limited  for  the  slave  trade  having  elapsed,  our 
fathers  made  haste  to  prevent  it,  in  a great  measure,  by  severe 
prohibitory  legislation.  They  also  narrowed  the  area  in  the 
Northwest  by  the  contemporaneous  ordinance  which  excluded 
it  from  the  common  territory.  And  as  men  emigrate  more 
from  instinct  than  reason,  and  the  march  of  our  people  has  been 
westward,  the  free  territory  received  three  times  the  accessions 
from  the  slave  section  which  the  latter  received  from  the 
former,  thus  transferring  the  balance  of  power  to  the  division 
of  free  labor. 

The  time  has  hardly  arrived  to  discuss  the  institution  of 
African  slavery  in  America,  humanized  as  it  was. 

Born  and  reared  in  its  very  center,  having  spent  my  life 
in  its  midst ; surrounded  by  the  school  which  defended  it,  yet 
never  responsible  for  its  evils,  I am  not  here  to  severely  censure 
one  generation  or  another  in  regard  to  it.  Certainly  I am  not 
going  to  defend  it,  or  to  deny  that  in  all  its  tendencies  it  was 
economically  depressing,  and  nationally,  religiously,  and  in 


LECTURE  BY  THE  AUTHOR. 


XXVli 


dividually  demoralizing.  It  is  enough  that  it  is  thus  described 
by  the  best  of  our  law  writers : — 

“ By  the  civil  law  slaves  could  not  take  by  purchase  or 
descent.  They  had  no  heirs,  and  therefore  could  make  no  will. 
They  were  not  entitled  to  the  rights  and  considerations  of 
matrimony,  and  therefore  had  no  relief  in  case  of  adultery. 
Nor  were  they  proper  objects  of  cognation  or  affinity,  but  of 
quasi  cognation  only.  Contubernism  was  the  matrimony  of 
slaves ; a permitted  connection,  not  partaking  of  the  lawful 
marriage,  which  they  could  not  contract.  The  state  of  slavery 
in  this  country  compares  with  that  existing  under  the  Roman 
law  in  many  respects.  The  progress  of  society  in  civilization, 
more  correct  notions  on  the  subject  of  moral  obligation,  and, 
above  all,  the  benign  influence  of  the  Christian  religion,  have 
softened  many  of  the  rigors  attendant  on  slavery  among  the 
ancients.  But  the  rights  of  the  slave  in  respect  to  marriage, 
and  the  acquisition  of  property  by  way  of  inheritance,  remain 
substantially  on  the  same  ground.” 

To  this  evil  may  be  added  the  absolute  right  of  buying, 
selling,  controlling,  and  almost  unlimited  punishment  by  the 
master;  the  necessity  of  preaching  a* lower  religion  for  the 
slave,  and  of  giving  a lower  interpretation  of  the  Divine  Word  ; 
of  denying  all  education  to  the  bondmen,  and  yet  to  live  in 
the  constant  dread  that  they  would  at  some  time  assert  their 
freedom. 

But  all  these  evils  and  every  fancied  good  have  been  swept 
away  by  these  few  simple  words : “ Neither  slavery  nor  in- 
voluntary servitude  * * * shall  exist  in  the  United  States, 
or  any  place  subject  to  their  jurisdiction.” 

I would  gladly  turn  away  from  the  sight  of  the  serried 
hosts,  horses  and  chariots,  which  perished  in  the  red  sea  of 
blood,  in  the  background  of  these  words  engraved  upon  the 
tablets  of  the  great  American  heart.  I am  persuaded  that  a 
smaller  number  would  be  found  to  cancel  this  declaration,  than 
to  dash  to  pieces  the  tables  of  stone  on  which  were  engraved 


1, 


xxviii  LECTURE  BY  THE  AUTHOR. 

the  Divine  commandments  amidst  the  thunders  of  Sinai.  The 
destruction  of  slavery  was  the  loss  of  fortune  and  of  all  the 
advantages  of  affluence  to  many  families.  They  can  illy  adapt 
themselves  to  the  change.  Yet  few  would  take  the  step  back- 
ward. The  States  where  it  existed,  however  unwillingly  at 
the  moment,  acknowledged  the  necessity  of  engrafting  this 
same  principle  into  their  own  organic  laws,  and,  generally, 
they  ratified  this  amendment.  It  was  proclaimed  on  the 
fourteenth  day  of  December,  1865.  It  not  merely  swept  the 
name  and  the  fact  of  the  system  from  all  our  laws,  and  took 
from  the  States  the  power  to  restore  them,  but  it  also  opened 
new  fields  of  inquiry. 

Through  all  the  history  of  our  country  words. of  ordinary 
signification  had  been  of  very  doubtful  meaning  in  our  law 
and  polity.  Thus  “ people,”  “ persons,”  “ citizens,”  “ residents,” 
and  “ inhabitants  ” had  to  be  twisted  and  tortured  in  every 
place  where  they  described  the  free  man,  the  native  of  the 
soil,  the  naturalized  man,  the  elector.  The  tinge  of  color, 
whether  in  the  free  States  or  slave  States,  with  a few  excep- 
tions, was  a sufficient  crime  to  exclude  from  all  rights  the 
emancipated  people  of*  African  descent.  They  were  not  ac- 
knowledged to  be  of  the  “ people  ” who  ordained  the  Constitu- 
tion ; the  “ electors  ” who  might  choose  representatives  and 
president ; the  u citizens  ” eligible  to  any  office,  or  entitled  to 
inter-state  “ privileges  and  immunities,”  to  passports,  trial  by 
jury,  or  to  the  rights  of  property.  They  were  denizens  with 
no  defined  status.  Yet,  whether  as  men  or  chattels,  these 
beings  were  a mighty  element  in  the  political  history  of  the 
nation  until  the  final  day  came.  “ Soundness  upon  the  negro  ” 
controlled  all  other  politics.  Extremists  for  or  against  slavery 
were  the  successful  competitors  for  honors.  And  when,  by 
war,  and  as  the  logical  fruit  of  the  contest,  four  millions  of 
freedmen  were  added  to  the  nondescript  half  million  of  eman- 
cipated, free  persons  of  color, — half  of  whom  were  in  the  free 
f and  half  in  the  slave  States, — there  still  remained  a problem 


I 


LECTURE  BY  THE  AUTHOR.  xxix 

which  had  to  be  solved.  The  word  “ citizen,”  which  meant 
one  thing  for  representative,  another  for  senator,  something 
more  definite  for  President,  but  entirely  indefinite  as  to  rights 
in  the  national  courts,  of  twelve  classifications  as  to  the  modes 
of  creation  and  description,  of  no  signification  as  to  the  right 
of  suffrage,  had  now  to  be  defined  by  organic  law.  It  is 
strange  that  no  definition  is  found  in  the  original  instrument, 
or  in  any  of  the  first  twelve  amendments,  which  constituted  our 
bill  of  rights.  The  comprehensive  language  transmitted  from 
Magna  Charta  was  generally  held  not  to  apply  to  those  who 
could  not  claim  Caucasian  descent. 

As  a necessity,  a definition  and  some  remedies  for  the  in- 
vasion of  their  civil  rights  had  been  passed  over  the  President’s 
veto.  The  angry  discussions  which  followed,  and  the  conflict- 
ing opinions  and  judicial  decisions  upon  the  constitutionality 
of  the  civil  rights  law,  rendered  it  necessary  to  remove  the 
doubts  as  to  congressional  power,  or  to  recede,  to  make  the 
law  organic,  or  to  risk  its  repeal.  The  former  course  was 
adopted,  and  more  comprehensive  words  could  not  have  been 
employed. 

“ All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.” 

This,  with  other  sections  of  this  amendment,  was  put  before 
the  people  and  virtually  carried  by  popular  elections.  But 
however  carried,  it  has  been  proclaimed  and  acted  on  as  a part 
of  the  organic  law ; it  is  the  universal  sentiment  of  the 
nation  ; and  there  is  no  fact  against  the  means  which  does  not 
apply  to  the  thirteenth  amendment.  All  the  amendments  have 
been  adopted  by  the  great  law  of  general  acquiescence.  So 
that  we  could  no  more  recede  as  to  the  one  than  the  other. 

As  already  intimated,  the  term  “ persons  ” had  been  one  of 
varied  signification.  But  contemporaneous  history  leaves  no 
doubt  of  what  was  intended  here.  By  general  terms  it  was 
intended  to  incorporate  those  made  free  by  the  thirteenth 

B 


XXX 


LECTURE  BY  THE  AUTHOR. 


amendment  into  the  body  politic ; and  to  leave  no  doubts  as  to 
the  naturalized,  whether  by  uniform  rule,  by  purchase,  con- 
quest, annexation,  or  treaty.  They  all  alike  are  entitled  to  the 
proud  distinction  of  American  citizenship. 

And  looking  to  the  past  evils  in  reference  to  the  colored  race, 
and  the  naturalized,  and  to  the  shameless  intolerance  against 
the  freedom  of  conscience,  of  the  press,  and  of  speech,  the 
guaranty  was  added,  that  “ no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States ; nor  shall  any  State,  deprive  any  person  of 
life,  liberty,  or  property,  without  due  process  of  law,  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.”  - 

Thus,  whoever  is  born  within  the  jurisdiction  of  the  United 
States,  or  is  naturalized,  goes  forth  with  full  assurance  that  to 
the  States  is  denied  the  power  of  discrimination  against  him. 

How  few  lawyers  even  have  contemplated  the  full  scope  of 
this  declaration ! Life,  liberty,  and  property  embrace  the  whole 
range  of  civil  rights.  The  simple  phrase,  “ no  State  shall  pass 
any  law  impairing  the  obligation  of  contracts,”  has  brought 
almost  every  imaginable  contract  into  review  before  the  Su- 
preme Court  of  the  United  States.  So  these  much  more  com- 
prehensive words  subject  every  character  of  State  law  to  the 
final  supervision  of  the  highest  national  tribunal.  For  what 
law  can  be  passed  which  does  not,  in  some  way,  affect  the  privi- 
leges or  immunities,  or  the  life,  liberty,  and  property  of  the 
citizen?  Not  that  States  may  not  legislate  upon  all  these  sub- 
jects, but  all  legislation  must  be  in  obedience  to  the  paramount 
law. 

But  as  “privileges  and  immunities”  did  not  mean  that  a citi- 
zen could  carry  the  local  laws  of  his  State  into  another  State, 
but  that  he  is  only  entitled  to  the  rights  and  privileges  of  the 
citizens  of  that  State,  no  more  nor  less,  and  as  he  was  not  enti- 
tled to  vote,  as  one  of  his  privileges,  until  the  constitution  or 
laws  of  that  State  gave  him  power  to  vote : and,  as  from  the 


LECTURE  BY  THE  AUTHOR. 


XXXI 


foundation  of  the  government,  the  States  had  claimed  and  ex- 
ercised the  right  to  determine  what  shall  be  the  qualifications 
’requisite  for  electors,  and  that  right  had  been  so  exercised  as 
to  produce  most  incongruous  inconsistency,  with  no  uniform- 
ity, save  as  to  sex  and  age,  and  approximate  uniformity  as  to 
color,  and  as  the  second  section  of  the  fourteenth  amendment 
recognizes  the  power  of  excluding  male  inhabitants,  being  citi- 
zens of  the  United  States,  at  the  expense  of  a corresponding 
deduction  in  the  national  representation,  a further  amendment 
to  take  away  the  power  of  discrimination  on  account  of  race, 
color,  or  previous  condition  of  servitude,  seemed  to  follow  as  a 
logical  sequence.  The  constitutions  of  States  were  liable  to  be 
changed.  There  was  gross  injustice  in  forcing  this  suffrage 
upon  the  most  unwilling  States,  while  the  conquerors  refused  it 
for  themselves. 

It  must  be  borne  in  mind  that  the  governments  which  the 
executive  had  built  up  in  the  States  which  had  been  engaged 
in  the  war  against  the  United  States,  with  a single  exception, 
rejected  this  fourteenth  article,  and  the  thirteenth  had  been 
passed  without  the  concurrence  of  two  of  them.  In  their  con- 
stitutions of  1865  and  1866,  these  States,  in  common  with  the 
great  majority  of  the  States  of  the  Union,  had  excluded  the 
black  race  and  their  descendants  of  every  hue  from  all  political 
participation  in  the  government.  They  nevertheless  claimed 
that  two-fifths  of  the  late  slaves  had  been  added  to  the  repre- 
sentative basis,  while  to  the  whites  was  committed  all  political 
power  and  nearly  all  the  civil  rights  of  the  country.  How  far 
it  was  possible  or  proper  for  a government  which  had  em- 
ployed many  of  the  representative  men  of  this  race  in  conquer- 
ing those  who  had  made  so  desperate  a struggle  to  destroy  the 
Union,  is  a question  about  which  men  and  parties  have  dif- 
fered widely.  According  to  my  notions  of  justice,  it  is  impos- 
sible in  a republic  long  to  exclude  one-eighth  of  the  whole 
fighting  population  from  the  polls.  The  organization  of  politi- 
cal parties  and  their  struggles  for  power,  forever  create  advo- 


XXX11 


LECTUEE  BY  THE  AUTHOE. 


cates  for  the  manumission  of  all  inhabitants,  whether  citizens 
or  not.  Nearly  all  distinctions  based  upon  property  have  been 
destroyed,  upon  the  principle  that  life  and  liberty,  to  which  all 
have  equal  rights,  and  which  the  poor  find  it  more  difficult  to 
protect  than  the  rich,  are  dearer  than  property. 

The  weak  expedient  of  clerical  qualifications  fails  to  satisfy 
the  philosopher  and  statesman.  Instinctively  the  mind  rushes 
to  the  conclusion  that  citizenship  and  manhood  responsibilities 
to  society  are  the  safest  tests.  About  this  there  may  never  be 
absolute  agreement;  for  there  is  a proneness  to  distrust  the 
wisdom  of  the  masses ; but  of  this  we  may  be  certain : liberty 
on  this  continent  takes  no  step  backward.  Therefore,  we  need 
not  inquire  whether  it  was  wise  or  unwise  to  ratify  the  fifteenth 
amendment  to  the  Constitution.  It  was  a measure  forced  upon 
statesmen  by  the  logic  of  events  and  the  necessities  of  previous 
departures. 

We  may  admit  that  the  independent  owner  of  freehold  or 
other  property  is  a safer  voter  for  that  property ; and  even  that 
the  larger  may  be  his  possessions  the  more  careful  will  he  be 
of  the'  true  interests  of  the  body  politic.  But  property  is  only 
one  of  the  absolute  rights  of  freemen.  Life  and  liberty  are 
dearer  to  all  men  than  property,  since  for  his  life  will  man  give 
all  that  he  hath.  So  we  may  agree  that  the  more  learned  man 
is  in  the  wisdom  of  schools,  the  less  liable  is  he  to  be  deceived 
by  demagogues,  and  the  more  certain  is  he  to  cast  his  vote  for 
wise  and  virtuous  magistrates.  But  these  admissions  only  im- 
pose on  us  the  duty  of  maintaining  institutions  so  just  and 
equal  that  the  industrious  may  easily  acquire  independence; 
and  so  enlightened  that  education  may  be  accessible  to  all. 
There  is  no  incentive  to  become  wealthy  and  wise,  so  strong  as 
the  desire  to  participate  in  public  affairs.  The  country  which 
gives  the  ballot  and  opens  the  road  to  preferment,  erects  the 
school  and  displays  glittering  prizes  to  ambitious  students. 
Therefore,  whether  the  country  took  a philosophical  view  of 
the  subject  or  not,  the  theory  of  action  was,  that  by  the  rebel- 


LECTURE  BY  THE  AUTHOR. 


XXXlll 


lion,  governments  practically  responsible  to  the  United  States, 
had  ceased  to  exist  in  the  revolting  States ; that  the  govern- 
ments of  the  President  were  provisional  only,  and  not  in  har- 
mony with  the  changed  order  of  things;  that  the  mode  of 
rehabilitation  and  restoration  to  all  the  benefits  of  the  Union 
were  within  congressional  control,  and,  as  a means,  suffrage 
was  bestowed  upon  the  black  man  in  the  work  of  reconstruc- 
tion. This  was  the  logic ; these  the  motives. 

When  the  historian  shall  come  to  consider  the  whole  frame- 
work of  reconstruction,  both  under  the  President  and  under 
Congress,  from  a philosophical  stand-point,  he  must  arrive  at 
the  conclusion  that  all  these  exercises  of  power  were  for  the 
purpose  of  securing  these  new  organic  guaranties. 

The  Constitution  had  to  be  amended  so  as  to  destroy  slavery. 
The  President  said  to  the  legislatures  of  eleven  States,  where 
it  had  most  existed,  “ ratify  the  thirteenth  amendment,”  and 
nine  of  them  did  it.  Congress  said,  “ this  is  not  enough  ; we 
must  have  a fourteenth  article.”  The  President  differed,  these 
same  States  refused  and  Congress  devised  the  plan  of  creating 
legislatures  which  would  comply.  The  reconstruction  laws 
did  the  work,  and  also  enabled  Congress  and  the  willing  States 
to  superadd  the  fifteenth  amendment.  The  change  has  been 
accomplished  as  the  logical  result  of  the  war  of  ideas  upon  the 
great  subject  of  human  slavery. 

This  is  not  the  proper  place  to  discuss  whether  these  exer- 
cises of  power,  first  by  the  President  and  afterward  by  Con- 
gress, were  founded  in  wisdom  or  not.  My  purpose  is  to  accept 
the  facts  and  to  discuss  the  Constitution  as  it  is ; and  fully  con- 
ceding the  power  so  to  amend  under  the  forms  of  the  Constitu- 
tion, to  inquire  what  are  now  our  rights  ? It  is  useless  to  dis- 
cuss the  means  employed  to  attain  the  ends.  Millions  who 
opposed  would  more  strongly  resist  all  efforts  to  retrace  our 
steps. 

The  thirteenth  article  having  destroyed  slavery,  the  four- 
teenth having  fixed  upon  the  freedmen  the  status  of  citizenship, 
3 


XXXIV 


LECTUEE  BY  THE  AUTHOE. 


and  brought  every  State  law  under  the  immediate  supervision 
of  Federal  control,  and  the  fifteenth  having  withdrawn  from  the 
States  the  power  to  discriminate  between  electors,  it  follows 
that  as  to  rights  before  the  law  and  at  the  polls  there  can  be 
no  distinction  on  account  of  race,  color,  or  previous  condition. 
And  whether  these  amendments  be  regarded  as  explanatory  or 
declaratory,  the  practical  workings  of  the  government  have 
thus  been  changed.  Two-fifths  of  four  millions  have  been 
added  to  the  representative  basis ; twelve  hundred  thousand 
have  been  added  to  the  voting  population ; four  millions  and  a 
half  of  people  have  been  started  oil  the  road  of  human  progress; 
an  all-absorbing  paramount  issue  has  been  measurably  removed 
from  the  arena  of  party  politics ; four  millions  of  litigants  have 
been  added  to  the  list  of  those  who  may  assert  their  rights  in 
our  courts,  become  the  holders  of  property,  the  recipients  of 
fortune,  and  the  subjects  of  intellectual  wealth.  Thus  while  the 
States  have  lost  much  power,  the  masses  have  gained  many 
new  securities  for  liberty.  Suffrage  has  been  engrafted  as  a 
privilege  and  immunity  which  a State  can  no  more  infract  than 
it  can  any  other  absolute  or  subordinate  right.  Those  who 
complain  that  there  is  tyranny  in  this,  forget  that  liberty  to 
every  citizen  has  gained  a higher  stand  and  a securer  foun- 
dation. 

This  is  not  the  place  to  indulge  in  prophecies  as  to  the  future 
consequences.  There  are  those  who  believe,  that  this  freedom 
will  be  the  destruction  of  the  colored  race  ; that  their  numbers 
have  already  decreased  and  will  continue  to  decrease  ; and  that 
finally,  by  decay  and  amalgamation,  they  will  perish  away. 
It  is  neither  expected  nor  desired,  that  they  should  increase  in 
the  slave  ratio.  Since  the  four  hundred  years  of  Egyptian 
slavery  which  swelled  the  seventy-five  of  Jacob’s  descendants 
to  three  millions,  who  escaped  through  the  Red  Sea,  there  lias 
been  no  such  increase,  as  the  statistics  of  American  slavery  foot 
up  from  1810  to  1860.  Such  an  increase  in  two  hundred  years 
would  have  given  that  race  two-fifths  as  many  inhabitants  as 


LECTURE  BY  THE  AUTHOR. 


XXXV 


tHere  are  now  in  the  world ; and  in  three  hundred  years  their 
numbers  would  have  been  swelled  to  three  times  the  present 
population  of  the  globe.  And  if  the  same  ratio  were  possible, 
half  the  time  which  has  elapsed  since  Joshua  took  up  the  line 
of  march  with  his  army  of  600,000  warriors,  would  leave  no  foot 
of  earth  for  the  black  man’s  tread  ! 

But  let  not  this  problem  alarm.  With  the  aid  of  immigra- 
tion to  the  United  States,  the  white  race  has  increased  in  a 
corresponding  ratio,  our  total  of  all  races  swelling  from 
7,239, 814  in  1810  to  31,443,322  in  1860.  The  same  ratio  of  in- 
crease would  give  us  eleven  billions,  three  hundred  and  forty- 
^three  millions,  four  hundred  and  thirty  thousand,  one  hundred 
and  fifty-nine  (11,343,430,159)  inhabitants  within  two  hundred 
years. 

The  human  mind  loses  itself  in  contemplation  of  the  destiny 
of  this  continent  which  a rude  civilization  discovered  in  the 
fullness  of  time.  With  a Constitution  which  now  secures  equal 
rights  to  all ; liberty  and  protection  for  every  race ; a continent 
so  vast  in  its  resources,  and  the  inhabitants  of  which  are  so 
ready  to  be  incorporated  into  one  great  republic ; with  the  new 
discoveries  in  medical  science  and  the  ameliorations  which 
promote  longevity;  fifty  thousand  miles  of  railroad  and  the 
system  yet  in  its  infancy ; an  interstate  commerce  which  far 
exceeds  the  international  commerce  of  the  whole  world;  with 
telegraphy  which  affords  instant  communication  with  nearly 
all  the  inhabitants  of  the  earth  ; with  the  great  hives  of  Asiatic 
myriads  coming  to  our  western  shores,  and  already  rolling  back 
the  tide  of  immigration  to  the  valley  of  the  Mississippi ; with 
an  ever-restless  population,  which  can  not  pause  in  the  work  of 
improvement,  what  may  we  not  expect'  of  our  glorious  country 
under  its  wise  government  ? And  who  will  undertake  to  say 
that  this  arithmetical  ratio  of  increase  will  not  be  maintained  ? 

“ War,  pestilence,  and  famine”  are  the  three  great  curses 
which  God  has  inflicted  to  arrest  the  multiplication  of  erring 
man. 


XXXVI 


LECTURE  BY  THE  AUTHOR. 


The  Genoese  sailor  found  here  a scattered  race,  whose  abnor- 
mal state  seemed  to  be  that  of  exterminating  warfare.  They 
had  made  little  or  no  progress  in  the  arts  of  civilization ; they 
have  improved  little  by  contact  with  the  European  immi- 
grants ; they  have  well  nigh  perished  before  our  advancing 
strides ; and  they  are  the  only  people  to  whom  our  Constitu- 
tion is  erroneously  believed  not  to  extend  brotherhood.  My 
own  reading  is,  that  upon  them,  as  upon  all  others,  has  been 
cast  the  inestimable  boon  of  American  citizenship  ; and  safety, 
peace,  uniformity,  justice,  and  humanity  demand  that  they 
should  be  brought  under  all  the  responsibilities  of  our  gov- 
ernment. 

We  have  just  passed  through  a terrible  civil  war;  but  it  is 
not  believed  that  it  has  materially  arrested  our  ratio  of 
increase,  although  when  we  think  of  the  half  million  of  wid- 
ows, actual  and  prospective,  which  it  has  caused,  we  might 
well  anticipate  some  diminution,  were  it  not  overbalanced  by 
the  swelling  stream  of  immigration. 

Pestilence,  in  the  proper  sense  of  the  term,  our  fathers  have 
not  known,  although  contagious  and  miasmatic  influences  have 
often  caused  great  mortality  in  some  sections  of  our  country. 
But  these  epidemics  have  now  disappeared  from  many  geo- 
graphical belts  for  over  half  a century,  and  the  improvements 
in  science  give  us  hope  that  the  ratio  of  mortality  will 
decrease. 

Famine  is  the  climacteric  in  the  curse.  As  yet  it  has  been 
endured  by  comparatively  few  upon  the  continent ; it  is  little 
dreaded  by  the  most  indigent  in  our  crowded  cities ; it  is  un- 
known in  our  rural  districts.  The  vast  accumulation  of 
wealth,  organized  benevolence,  equalized  and  self-protected 
labor,  the  more  humanized  tendencies  of  men,  and  the  daily 
increasing  independence  of  women,  make  gaunt  famine  a thing 
not  to  be  feared  while  the  earth  is  equal  in  productiveness  to 
the  demands  of  its  inhabitants.  If  we  shall  be  preserved  from 
war  and  pestilence,  there  is  a mighty  field  for  the  philosopher 


LECTURE  BY  THE  AUTHOR. 


XXXV11 


and  the  lover  of  his  race  to  be  occupied  in  improving  our  soil, 
diversifying  our  industries,  and  increasing  food  in  a corre- 
sponding ratio  with  the  increase  of  consumers. 

* If  we  can  but  remain  peacefully  as  one  government,  tolerat- 
ing every  difference  in  religion,  observing  scrupulously  the 
true  landmarks  between  State  and  National  authority,  avoid- 
ing those  corruptions  among  magistrates  which  destroy  confi- 
dence in  popular  rule,  maintaining  justice  with  equal  balances, 
and  enlightening  the  great  masses,  we  have  nothing  to  fear 
from  wars,  few  physical  causes  for  pestilence;  and,  if  we 
would  avoid  the  greater  calamity  of  famine  for  coming  ages, 
the  most  enlightened  minds  must  devote  their  best  energies 
to  the  improvement  of  the  earth  and  the  multiplication  of  the 
food-producing  animals  of  the  world. 

But  I am  traveling  out  of  my  field.  I had  only  intended 
to  discuss  the  rights  of  the  citizen  under  the  Constitution  as 
it  now  is.  To  render  these  rights  secure  under  the  national 
aegis,  wise  legislation  and  laws  to  suit  the  changed  organism, 
are  loudly  demanded.  The  power  is  only  limited  by  the 
appropriateness  of  the  remedies.  Legislators  have  not  yet 
risen  to  the  emergency.  The  transition  has  been  so  sudden 
that  the  people  are  hardly  yet  awake  to  the  wonderful  reality. 

In  the  third  section  of  the  Fourteenth  Amendment  there  is 
a punitive  change.  It  reads  as  follows  : “3.  No  person  shall 
be  a senator  or  representative  in  Congress,  or  elector  of 
President  and  Vice-President,  or  hold  any  office,  civil  or  mili- 
tary, under  the  United  States,  or  under  any  State,  who,  hav- 
ing previously  taken  an  oath,  as  a member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any  State, 
to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress  may, 
by  a vote  of  two-thirds  of  each  house,  remove  such  disabil- 
ity.” 


XXXV111 


LECTURE  BY  THE  AUTHOR. 


Considered  as  a punishment  merely,  the  expedient  is  hardly 
worthy  of  a great  nation.  As  a preventive  remedy  for  the 
future  and  a means  of  security,  it  is  a kind  of  logical  sequence 
to  the  third  clause  of  the  sixth  article,  which  declares  that 
precisely  the  same  class  of  officers  shall  be  bound  by  oath  or 
affirmation  to  support  this  Constitution.  The  theory  is,  that 
that  oath  once  taken  as  a condition  to  the  exercise  of  a trust, 
creates  a perpetual  and  enduring  allegiance,  higher  and  more 
sacred  than  the  natural  allegiance  due  from  every  citizen  to  his 
government ; and  that  the  magistrate  and  ex-magistrate  who 
disregards  his.  oath  should  be  disqualified  from  the  exercise  of 
office  in  the  future.  As  a means  of  securing  this  amendment 
the  reconstruction  laws  excluded  from  the  work  of  reorganiza- 
tion the  same  class  of  men,  by  the  use  of  the  same  words,  aud 
by  the  explanation  that  u officer,”  as  here  used,  meant  civil 
officer , and  that  the  disqualification  was  only  intended  to 
extend  to  such. 

It  is  enough  to  say  of  these  laws,  that  they  have  accom- 
plished their  end — the  ratification  of  the  Fourteenth  Amend- 
ment, and  the  logical  sequence  of  this  forced  change,  the 
Fifteenth  Article.  And  now  let  us  hope,  as  I sincerely  believe, 
that  the  necessity  for  this  disqualification  no  longer  exists ; 
and  that  the  congressional  clemency  may  be  exercised,  and 
full  peace  and  confidence  restored,  and  all  citizens,  without 
distinction,  started  upon  an  equal  race  of  usefulness  in  the 
development  of  our  yet  infant  country. 

It  is  an  encouraging  fact  that  the  States  are  amending  their 
constitutions  to  conform  to  the  changes,  and  are  restoring  the 
franchise  to  all.  This  is  wisdom,  although  it  may  not  be 
necessary.  Voluntary  assent  is  always  more  desirable  than 
compulsory  means.  All  agree  that  the  Constitution  is  the 
supreme  law ; and  when  it  clearly  defines  a right  and  grants  the 
power  to  protect  that  right,  a uniform  law  may  certainly  be 
passed  to  enforce  it.  But  in  a large  degree  government  must 
test  upon  the  consent  of  the  governed.  And  to  make  a law 


LECTUEE  BY  THE  AUTHOE. 


XXXIX 


effectual,  it  must  be  in  harmony  with  the  popular  will.  Yet 
these  are  not  reasons  why  Congress  should  not  do  its  whole 
duty,  by  enacting  a wise  code  for  the  protection  of  civil  and 
the  security  of  political  rights.  And  certainly  there  can  be 
no  such  oblivion  to  past  erroneous  interpretations  as  a thor- 
ough understanding  of  the  radical  changes. 

Let  it  be  understood  that  these  amendments  have  expur- 
gated human  slavery  from  the  Constitution  of  the  United 
States,  and  from  the  whole  country  under  their  jurisdiction ; 
have  changed  the  representative  basis  and  founded  it  upon 
voters  as  well  as  numbers ; have  defined  national  citizenship 
and  thrown  around  it  the  guaranties  of  Federal  protection; 
have  limited,  if  not  entirely  withdrawn  the  powers  of  the 
States  over  suffrage  ; have  made  sacred  the  official  oath  to 
support  the  Constitution,  and  fixed  the  seal  of  disqualification 
upon  those  who  in  the  past  have,  and  in  the  future  may,  engage 
in  rebellion  against  the  United  States ; and,  as  germain  to  the 
national  security,  the  faith  of  the  people  is  pledged  to  the  pay- 
ment of  all  debts,  past  or  future,  which  have  been  and  may 
be  incurred  in  the  suppression  of  insurrection  or  rebellion; 
while  the  stamp  of  repudiation  is  fixed  upon  all  debts,  State  or 
corporate,  which  may  have  been  incurred  in  aid  of  these 
causes. 

These  are,  indeed,  mighty  facts  accomplished.  They  are 
restrictions  upon  the  State  and  Federal  governments,  so  that 
we  could  only  return  to  the  past  by  the  same  road  through 
which  we  have  reached  the  present. 

It  may  be  asked,  what  are  now  the  powers  of  government 
after  the  incorporation  of  these  amendments,  superinduced  by 
so  great  a revolution  ? Here  I wish  not  to  enter  upon  debat- 
able ground.  We  are  all  agreed  that  the  objects  of  the 
Constitution  were  to  form  a more  perfect  union,  establish  jus- 
tice, insure  domestic  tranquillity,  provide  for  the  common 
defense,  promote  the  general  welfare,  and  to  secure  the  bless- 
ings of  liberty  to  the  whole  people  and  their  posterity.  This 


i 


xl 


LECTURE  BY  THE  AUTHOR. 


preamble  yet  remains  the  key  to  the  whole  instrument.  It  is 
more  appropriate  than  it  was  before  a single  amendment  was 
made. 

We  agree  that  these  objects  are  to  be  attained  by  the  elec- 
tion of  senators  and  representatives  to  Congress  in  the  mode 
prescribed  in  the  Constitution,  and  at  the  times  and  places  and 
in  the  manner  fixed  by  the  States,  unless  the  regulations  be 
modified  by  Congress  ; in  choosing  a President  upon  the  basis 
of  representative  numbers;  in  organizing  and  maintaining 
judicial  tribunals,  and  conferring  upon  them  all  the  jurisdiction 
contemplated  by  the  Constitution  as  it  was,  and  by  the  amend- 
ments intended  to  secure  the  personal  and  political  rights  of 
every  citizen. 

As  the  government  is  one  of  limited  powers,  the  manner  of 
their  exercise  has  been,  and  always  must  be,  questions  about 
which  patriots  may  differ. 

It  is  a notable  fact  that  in  the  history  of  the  country  the 
interposition  of  the  executive  veto  has  been  so  rare  as  always 
to  attract  attention,  and  when  the  occasions  have  been  of 
moment  the  people  have  generally#lecided  at  the  polls  in  favor 
of  right.  So  of  all  the  laws  ever  passed  by  Congress,  only 
half  a dozen  of  them  have  been  held  by  the  Supreme  Court  of 
the  United  States  to  be  unconstitutional.  And  when  these 
decisions  have  not  been  in  harmony  with  the  judgment  of  the 
nation,  they  have  hardly  had  the  practical  force  of  precedents. 
In  no  nation  in  the  world  has  there  ever  been  such  an  array 
of  legal  mind,  or  such  modes  of  constant  judicial  enlighten- 
ment. In  a complex  government,  where  there  are  thirty-eight, 
and  soon  must  be  fifty,  appellate  expounders  of  the  Constitu- 
tion, besides  the  hosts  of  publicists,  reviewers,  and  barristers 
necessary  to  carry  on  such  a machinery,  absurd  and  untenable 
precedents  can  maintain  no  permanent  hold.  Courts  may  not 
bow  to  the  popular  will ; but  they  can  never  withstand  the 
just  criticism  of  a nation  of  lawyers.  So  the  great  power  of 
impeachment,  although  several  times  attempted,  has  only  twice 


LECTUKE  BY  THE  AUTHOR 


xli 


succeeded.  We  are  thus  taught  that  these  extraordinary 
powers  of  one  department  of  the  government  over  the  hasty  or 
corrupt  action  of  another  are  fraught  with  no  danger,  since, 
with  them,  the  independent  action  of  legislative,  executive, 
and  judicial  functions  can  be  harmoniously  preserved,  and  all 
are  alike  responsible  to  the  great  alembic  of  popular  judgment. 

The  enumeration  of  powers  and  familiar  precedents  force  all 
to  admit  that  the  national  government  has  the  right  to  collect 
national  taxes,  duties,  imposts,  excises,  and  postage  ; to  regu- 
late commerce  ; to  coin  money,  and  regulate  the  value  thereof ; 
to  pass  uniform  rules  of  naturalization  and  bankruptcy ; to  levy 
war ; keep  armies  and  navies ; to  make  treaties  and  national 
compacts ; to  send  ambassadors  abroad ; to  purchase,  conquer, 
and  annex  states,  and  thus  enlarge  the  area  of  freedom ; to  sup- 
press insurrection  and  rebellion ; to  fulfill  the  guaranties  to  the 
States  of  full  faith  and  credit  to  judicial  proceedings ; the 
rendition  of  fugitives ; republican  form  of  government ; the 
organization  and  supervision  of  Territorial  governments,  or 
“ inchoate  States;”  the  exclusive  control  over  the  Federal 
district,  forts  and  arsenals ; all  matters  of  admiralty ; the 
punishment  of  piracies  and  felonies  upon  the  high  seas  ; and 
now  to  protect  the  citizens,  not  only  against  foreign  oppres- 
sion, but  against  the  encroachments  of  their  own  State  gov- 
ernments and  of  one  another ; and  that  the  National  govern- 
ment and  the  States  are  restricted  from  passing  bills  of  attain- 
der and  ex  post  facto  laws,  creating  titles  of  nobility,  estab- 
lishing religion,  or  preventing  the  free  exercise  thereof; 
abridging  the  freedom  of  speech,  of  the  press,  or  the  right  of 
petition ; instituting  domiciliary  visits  ; abolishing  grand  juries 
and  jury  trial  for  the  citizen  not  connected  with  the  military 
service ; invading  life,  liberty,  or  property  without  due  pro- 
cess of  law,  or  in  any  matter  violating  the  most  enlarged 
principles  of  republican  government. 

These  are  the  great  cardinal  features  of  the  government, 
and  there  are  others  of  lesser  moment,  restricting  direct  tax- 


xlii 


LECTURE  BY  THE  AUTHOR. 


ation  to  representative  numbers,  forbidding  export  duties  and 
other  matters,  of  detail  and  security  against  Federal  legisla- 
tion, and  which  prohibit  the  States  from  the  exercise  of 
national  powers  and  making  compacts  with  sister  States — 
grants  and  restrictions  which  have  not  been  increased  or  di- 
minished by  the  amendments.  And  these  very  amendments 
have  demonstrated  what  our  fathers  learned  in  the  early  days 
of  the  Republic,  that  if  evils,  real  or  supposed,  exist,  the 
charter  itself  has  provided  a peaceful  mode  of  incorporating 
new  provisions  or  abolishing  old  ones.  And  that  fourscore 
years  have  elapsed,  and  only  fifteen  amendments,  mostly  de- 
claratory, have  been  incorporated,  is  encouraging  proof,  that 
none  will  be  rashly  made. 

There  is  one  feature  in  the  history  of  the  fourteenth  and  fif- 
teenth amendments  which  might  have  assumed  a serious  form, 
but  which  fortunately,  under  the  mighty  influence  of  popular 
sentiment,  we  have  escaped.  I allude  to  the  fact  that  after  the 
amendments  had  been  “ ratified  by  the  legislatures”  of  several 
of  the  States,  but  before  the  necessary  “ three-fourths  ” had 
spoken,  legislatures  subsequently  elected  passed  resolutions  re- 
calling these  ratifications.  Here  is  a great  question  of  power. 
The  word  ratify  occurs  but  twice  in  the  instrument,  once  as  to 
the  mode  of  amendment,  and  once  as  to  the  “ ratification  ” of 
the  original  instrument  by  nine  States.  As  to  the  latter,  the 
nine  might  thus  agree  upon  a government  for  themselves  to 
the  exclusion  of  those  refusing  their  concurrence.  But  as  to 
amendments  three-fourths  may  ratify  for  themselves  and  for 
those  refusing.  Without  any  reference  to  the  political  aspect 
of  the  controversy,  it  has  ahVays  seemed  to  me  that  the  deriva- 
tion of  the  word  and  the  reason  and  spirit  of  the  article  lead  to 
the  conclusion,  that  whenever  a convention,  as  in  the  original 
case,  or  a legislature,  as  in  the  fifteen  others,  had  ratified  the 
whole  instrument  or  an  amendment,  it  agreed  that  so  soon  as 
the  appropriate  number  should  do  likewise,  the  whole  or  the 
amendment  should  be  binding ; and  that  the  force  of  the  con- 


LECTURE  BY  THE  AUTHOR. 


xliii 


sent  could  not  be  dependent  upon  the  subsequent  will  of  the 
ratifying  State,  but  upon  the  wills  of  the  other  States  which 
might  follow,  indeed  might  have  been  induced  to  follow  those 
very  States  which  attempt  to  revoke  their  ratifications.  The 
foundations  of  government  are  too  deep,  and  the  superstruct- 
ure of  too  mighty  weight  to  be  the  subjects  of  annual  caprice. 

I have  carefully  examined  the  subtle  arguments  to  the  con- 
trary. They  seem  to  me  to  be  kindred  to  that  theory  which 
has  cost  rivers  of  blood  and  mountains  of  debt,  the  monstrous 
assumption  that  a State  might,  at  any  time  and  for  any  cause, 
withdraw  its  ratification  of  the  Constitution  and  set  up  as  an 
independent  nation. 

Our  Constitution  rests  upon  no  false  notions  about  the  pre- 
ceding sovereign  character  of  the  States.  They  are  bound  by 
the  surrenders  to  the  extent  of  the  expressed  and  clearly  im- 
plied powers.  And  every  covenant,  including  the  right  to 
amend  in  the  mode  provided,  is  one  in  which  every  citizen,  as 
a citizen,  as  well  as  every  corporation  as  such,  has  a deep  and 
abiding  interest;  and  terms  of  such  covenant  can  only  be 
peacefully  changed  in  the  manner  provided  in  the  instru- 
ment. 

We  of  Texas  have  little  right  to  misunderstand  what  we 
surrendered.  We  were  a constitutional  republic.  We  had  a 
flag  and  seal ; a national  existence ; army  and  navy ; foreign 
treaties ; the  right  to  coin  money,  and  to  do  every  thing  which 
an  independent  nation  may  do.  But  by  the  act  of  annexation 
we  saw  our  lone  star  move  away  and  become  the  largest,  if  not 
the  brightest,  in  the  national  galaxy.  We  kne^v  and  we  felt 
that  we  were  a nation  no  more ; but  only  one  thirtieth  part  of 
a great  and  mighty  Republic.  An  effort  to  snatch  the  old  star 
from  the  constellation  has  not  hurt  it,  but  greatly  humbled 
those  who  so  grossly  mistook  the  theory  of  government.  Con- 
quered, punished,  and  humiliated,  that  State,  so  fruitful  of  use- 
ful revolutionary  precedents,  is  to-day  asking  readmittance  to 
the  full  fellowship  of  our  national  fraternity.  We  return 


xliv 


LECTURE  BY  THE  AUTHOR. 


wiser  if  not  better  men,  and  we  return  to  stay  and  grow  aa  we 
did  during  our  first  decade  in  the  Union,  to  increase  threefold 
in  ten  years,  and  to  become  the  great  theater  for  new  improve- 
ments, and  the  field  for  young  and  vigorous  growth. 

The  history  of  the  last  ten  years  has  “ written  and  lead  in 
the  rock  forever  ” that  an  appeal  to  force,  as  a redress  of  tem- 
porary evils,  or  as  a security  for  apprehended  dangers,  arouses 
the  nation  to  a sense  of  the  value  of  the  compact,  and  more 
firmly  binds  us  in  the  bonds  of  union.  Therefore,  there  is  no 
reason  to  despair  of  the  Republic,  so  long  as  the  true  philoso- 
phy is  understood,  that  our  Constitution  is  ordained  by  the 
people  and  for  the  people,  and  that  all  magistrates  are  but  the 
servants  of  the  people,  directly  responsible  to  them.  It  should 
be  the  mission  of  every  patriot,  as  far  as  in  him  lies,  to  teach 
the  people  the  true  principles  of  the  Constitution  ; to  enlighten 
them  as  to  their  rights  and  responsibilities  as  citizens,  and  to 
shield  them  against  wrong. 

To  its  study  I have  given  much  of  my  life.  My  permanent 
reproductions  have  been  few,  and  only  in  the  form  of  collect- 
ing definitions,  arranging  references  and  facts,  and  so  syste- 
matizing the  whole  as  to  arrest  the  attention  of  students,  and 
make  easy  the  thorough  mastery  of  the  great  principles  which 
underlie  our  government.  If  my  researches  shall  have  aroused 
the  attention  of  a few  thoughtful  minds,  I shall  felicitate  my- 
self in  the  belief  that  my  time  has  not  been  misspent.  And 
could  I select  my  own  niche  in  the  temple  of  fame,  I would 
prefer  to  be  remembered  as  the  writer  who  had  been  most 
successful  in  making  easy  the  study  of  the  charter  of  our 
liberties.  If  this  Academy  shall  give  a part  of  its  influence  to 
the  philosophical  teachings  of  the  Constitution,  and  in  de- 
monstrating how  in  its  thirtieth  decade  it  can  be  the  bond 
of  union  for  more  thousands  of  millions  of  souls  than  mil- 
lions at  the  commencement,  future  ages  will  have  reason  to 
bless  our  labors. 


LETTER  OF  GEO.  W.  PASCHAL  TO  THE  PRESIDENT, 

ASKING  FOR  THE 

PARDON  OF  LODOVIC  P.  ALFORD  AND  OTHER  CITIZENS, 

IMPRISONED  BY  MILITARY  COMMISSIONS  UNDER  THE 
RECONSTRUCTION  LAWS. 


Washington,  D.  C ..July  4,  1870. 

To  his  Excellency , TJ.  S.  Grant , President  of  the  United  States . 

Mr.  President:  On  this  day,  so  sacred  to  liberty,  I respect- 
fully ask  you  to  commemorate  its  infinite  blessings  by  order- 
ing the  release  of  Lodovic  P.  Alford,  who  is  lingering  out  a 
miserable  existence  in  the  penitentiary  of  Texas.  And  in 
asking  this  exercise  of  Executive  clemency,  I may  as  well 
frankly  admit  that  the  reasons  which  I shall  present  will  be 
alike  applicable  to  all  others  who  are  enduring  incarceration 
under  like  circumstances. 

I wish  you  to  understand  that  this  plea  is  not  made  by  a 
lawyer  merely  for  his  client.  My  duty  to  my  country  rises 
far  above  that  sacred  relation.  The  prayer  is  made  by  a cit- 
izen who  has  endured  much  suffering  under  military  rule ; a 
man  who  has  always  made  the  Constitution  his  polar  star;  and 
an  author  who  has  contributed  his  mite  towards  the  preserv- 
ation and  restoration  of  constitutional  liberty,  and  the  ex- 
position of  its  great  charter;  and  who  cannot  rest  quietly 
while  the  humblest  citizen  is  enduring  imprisonment  which 
the  Constitution  forbids. 

This  day  commemorates  the  ninety-fourth  year  of  Ameri- 
can independence,  and  it  naturally  invites  us  to  a retrospect 
of  the  time,  the  occasion,  and  the  reasons  which  inspired  our 
fathers  to  proclaim  the  immortal  heritage  to  man.  But,  for 

(xlv) 


xlvi 


LETTER  OF  THE  AUTHOR 


one,  I confess  my  inability  to  take  that  retrospect  with  satis- 
faction while  there  lingers  in  a loathsome  dungeon,  a single 
American  citizen,  with  no  constitutional  warrant  for  his  im- 
prisonment. 

I find  in  that  declaration  these  significant  passages,  then 
applicable  to  the  tyrant  from  whom  our  fathers  severed  their 
allegiance : 

“He  has  made  judges  dependent  on  his  will  alone,  for  the 
tenure  of  their  offices,  and  the  amount  and  payment  of  their 
salaries. 

“He  has  erected  a multitude  of  new  offices,  and  sent  hither 
swarms  of  officers  to  harass  our  people  and  eaj^out  their  sub- 
stance. 

“ He  has  kept  among  us,  in  times  of  peace,  standing  armies 
without  the  consent  of  our  legislature. 

“ He  has  affected  to  render  the  military  independent  of  and  su- 
perior to  the  civil  power. 

“He  has  combined,  with  others,  to  subject  us  to  a jurisdic- 
tion, foreign  to  our  Constitution,  and  unacknowledged  by  our 
laws ; giving  his  assent  to  their  acts  of  pretended  legislation : 

“For  quartering  large  bodies  of  armed  troops  among  us  : 

“For  protecting  them  by  a mock  trial,  from  punishment, 
for  any  murders  which  they  should  commit  upon  the  inhab- 
itants of  these  States : 

* * * “For  imposing  taxes  on  us  without  our  consent : 

“For  depriving  us , in  many  cases , of  the  benefits  of  trial  by  jury: 

“ For  suspending  our  legislatures,  and  declaring  themselves 
invested  with  powers  to  legislate  for  us  in  all  cases  whatso- 
ever.n 

Who,  on  this  holy  day,  can  read  these  extracts,  and  remem- 
ber the  history  of  the  last  few  years  without  fear  and  trem- 
bling? What  single  specification  in  all  the  charges  is  not  ap- 
plicable, in  all  its  force,  to  the  people  of  ten  States?  It  is 
no  answer  that  they  may  have  deserved  this  cruel  and  un- 
usual punishment.  The  responsibility  is  always  upon  the 


TO  THE  PRESIDENT. 


xlvii 


governors,  not  the  governed.  A Caesar  might  weep,  and  say, 

“ They  would  have  it  so  ! ” but  the  responsibility  was  none  the 
less  upon  Caesar.  The  ministers  of  George  III  could  find  ex- 
cuses for  all  their  acts  of  oppression  in  the  obduracy  of  the 
colonists.  But  they  learned  not  the  lesson,  that  men  who  un- 
derstand their  rights  regard  the  employment  of  unconstitu- 
tional means,  to  obtain  desired  ends,  as  worse  than  the  evil  in- 
tended to  be  eradicated,  or  the  irregularities  intended  to  be 
punished.  No  people  ever  hold  themselves  responsible  for 
their  oppressions;  nor  is  it  right  that  they  should. 

Thus  understanding  the  philosophy  of  government,  I feel 
that  I can,  with  the  more  freedom,  invite  your  Excellency’s 
calm  attention  to  this  fearful  indictment  against  a ruthless 
monarch  by  a portion  of  his  dutiful  subjects.  They  are,  in- 
deed, frightful  charges ; but  they  fall  far  short  of  the  griev- 
ances of  my  native  and  adopted  States  for  now  nearly  ten 
years.  I assure  you  that,  under  every  regime,  oppression 
has  only  differed  in  form  and  degree.  During  all  that  time 
vigilance  committees,  committees  of  safety,  martial  law,  mil- 
itary commissions,  conscriptions,  impressments,  taxes  levied 
and  collected  by  military  power,  suspension  of  civil  law  and 
of  the  inestimable  writ  of  habeas  corpus , trials,  incarcerations, 
and  executions  by  self-constituted  regulators,  by  judges  de- 
pendent upon  the  caprice  of  military  commanders  or  uncon- 
stitutionally constituted  military  commissions  and  provost 
marshals,  have  destroyed  liberty  and  almost  smothered  out  its 
spirit  in  those  States.  In  1862  Jefferson  Davis  and  his  mil- 
itary authorities,  who  controlled  the  rebellion,  placed  under 
martial  law* the  people  of  eleven  States  over  which  they  had 
control;  and  they  subjected  many  good  citizens  to  trial  by 
military  commissions  and  provost  marshals. 

In  my  own  person  then,  and  in  1864, 1 resisted  this  arbitrary 
exercise  of  power,  and  appealed  to  the  constitutions,  to  history 
and  the  principles  of  Magna  Charta , and  the  bills  and  petitions 
of  right  forced  from  the  tyrannical  kings  of  England.  I was 


xlviii 


LETTER  OF  THE  AUTHOR 


joined  by  others,  by  men  who  placed  the  preservation  of  lib- 
erty, with  the  loss  of  their  cause,  above  the  slavery  of  their 
own  race,  even  with  success  and  a disrupted  Union.  While 
we  were  not  able  to  save  many  citizens  from  military  oppres- 
sion, and  not  a few  from  the  loss  of  their  lives,  }ret  we  forced  the 
Congress  of  Richmond  to  declare  martial  law  abolished ; and 
we  awakened  the  people  to  the  real  character  of  the  cause  for 
which  they  were  pouring  out  their  blood  and  treasure.  This 
arbitrary  exercise  of  military  power,  this  utter  disregard  of 
constitutional  liberty,  was  the  first  serious  blow  to  the  Con- 
federate cause. 

I know  that  it  is  not  necessarv  that  I should  mention  this  . 
history  to  remind  your  Excellency  that  no  man,  in  all  the 
southern  States,  will  have  the  temerity  to  attribute  any  plea 
which  I make  in  behalf  of  my  fellow-citizens  into  giving  any 
indorsement  to  the  rebellion,  or  of  having  any  sympathy  with 
the  plans  and  purposes  of  the  rebels.  Nor  will  any  one  claim 
me  as  an  apologist  for  murderers.  No  man  in  all  the  nation 
was  more  shocked  than  myself  at  the  murder  of  George  W. 
Smith,  and  the  worthy  colored  men  who  were  slain  with  him, 
by  an  infuriated  mob.  There  are  no  greater  blots  upon  the 
escutcheon  of  our  country  than  these  vigilance  committees  and 
irresponsible  mobs,  save  and  except  those  military  star-chamber 
organizations,  which  assume  to  try  citizens  for  crime  in  the 
face  of  the  Constitution.  Yigilants  and  mobocrats  are  an- 
swerable to  their  returning  consciences  and  to  civil  law.  The 
crimes  of  unconstitutional  tribunals  are  the  sins  of  the  nation 
and  its  rulers. 

Now,  had  it  been  proved  before  a constitutional  civil  tribu- 
nal, to  the  satisfaction  of  a jury  of  his  peers,  that  Alford  was 
present,  aiding  and  abetting  the  perpetrators  of  this  mon- 
strous crime  at  Jefferson,  I should  be  the  last  to  pray  that  the 
extreme  penalty  of  the  law  should  not  be  inflicted  upon  him. 

But,  Mr.  President,  Alford  was  tried  in  star-chamber  by  a 
secret  military  commission  appointed  by  General  Reynolds, 


TO  THE  PRESIDENT. 


xlix 


who  then,  directly  and  indirectly,  exercised  all  executive,  legis- 
lative, and  judicial  power  over  one  million  citizens  of  Texas. 
Alford  was  found  guilty  of  murder  in  the  first  degree;  he  was 
sentenced  to  imprisonment  for  life  in  the  Texas  penitentiary, 
and  he  is  to-day  suffering  under  that  sentence,  and  under  color 
of  no  other  authority.  There  is  no  law  in  Texas  for  a lifetime 
imprisonment.  Our  penalty  for  murder  in  the  first  degree  is 
death ; in  the  second  degree  it  is  imprisoment  for  a term  of 
years.  (Paschal’s  Digest,  Article  2271.)  Had  the  commission 
found  in  favor  of  the  death  penalty,  it  would  have  been  the 
duty  of  your  Excellency  to  examine  the  facts,  in  accordance 
with  the  practice  in  military  trials,  and,  if  not  satisfied  upon 
the  evidence  or  the  law,  as  I am  sure  you  would  not  have  been, 
you  would  have  set  the  sentence  aside.  But  the  approval  of 
the  commanding  general  made  complete  the  sentence,  wholly 
unsustained  by  the  law  and  evidence.  And,  although  I am 
told  that  the  record  has  been  transmitted  to  the  office  of  the 
Judge  Advocate  General,  yet  access  to  it  has  been  denied  to 
the  counsel  of  Mr.  Alford.  The  conviction,  therefore,  of 
Lodovic  P.  Alford  stands  upon  the  sentence  of  a military  com- 
mission, appointed  by  Brevet  Major  General  Reynolds,  com- 
mander of  the  fifth  military  district,  which  sentence  was  ap- 
proved by  the  same  general.  This  is  a stab  at  the  Constitu- 
tion and  the  Government  which  is  more  fatal  to  liberty  than 
the  crime  which  it  sought  to  punish. 

I need  not  tell  you  that  Alford  is  a citizen  of  the  United 
States;  that  he  never  was  in  all  his  life  in  any  way  connected 
with  the  army  or  navy,  or  with  the  militia  when  in  actual 
service.  Nevertheless  he,  a free  citizen,  has  been  tried  by  a 
secret  military  tribunal,  composed  of  military  officers,  in  ac- 
cordance with  military  forms,  and  sentenced  to  imprisonment 
for  life ! 

In  all  the  black  catalogue  against  George  III,  our  fathers 
urged  no  such  crime  as  this  against  the  Constitution  and  the 
law.  In  the  reign  of  Charles  I,  citizens  were  imprisoned  by 
4 


1 


LETTER  OF  THE  AUTHOR 


military  power,  and  judges  were  appointed  who  held  that  it 
was  a sufficient  return  ta  a habeas  corpus  that  the  prisoners 
were  held  by  military  order.  But  that  decision  could  not  stand. 
The  unfortunate  prince  was  forced  to  yield  the  petition  of 
right,  and  to  release  the  prisoner  before  he  lost  his  head  for 
the  violation  of  English  liberty.  And  his  levy  of  ship  money 
to  support  his  wars  was  not  a crime  half  so  black  as  his  im- 
prisonment of  citizens  by  military  power  alone,  his  denial  of 
the  writ  of  habeas  corpus s and  his  appointment  as  judges  of 
creatures  to  do  his  will,  rather  than  to  administer  the  funda- 
mental laws  made  to  protect  the  subjects  in  the  enjoyment  of 
their  lives,  liberty,  and  property. 

To  Congress  is  given  the  limited  power  to  constitute  tri- 
bunals inferior  to  the  Supreme  Court,  and  to  define  and  pun- 
ish piracies  and  felonies  committed  on  the  high  seas,  and 
offenses  against  the  law  of  nations.  But,  by  the  same  instru- 
ment, “th <$  judicial  power  shall  extend  to  all  cases , in  law  and 
equity,  arising  under  the  Constitution,  the  laws  of  the  United 
States,  and  treaties  made  or  which  shall  be  made  under  their 
authority.”  And  by  a clause  in  the  same  section  it  is  writ, 
ten: 

“The  trial  of  all  crimes , except  in  cases  of  impeachment, 
shall  be  by  jury ; and  such  trial  shall  be  held  in  the  State 
where  the  said  crimes  shall  have  been  committed;  but  when 
not  committed  within  any  State,  the  trial  shall  be  at  such 
place  or  places  as  the  Congress  may  by  law  have  directed .” 

A “case  in  law”  may  arise  as  well  upon  a crime  as  upon 
a civil  matter.  A “ trial”  is  an  examination  before  a com - 
petcnt  tribunal , according  to  the  laws  of  the  land , upon  the  facts 
put  in  issue,  upon  indictment  or  presentment , for  the  purpose  of 
determining  the  truth  of  such  issues.  The  framers  of  the 
Constitution,  and  all  judges  and  commentators  who  have 
passed  upon  this  article,  have  defined  this  “ trial ” to  mean, 
per  pais,  or  by  the  country;  that  is  by  a jury , who  are  called 
the  peers  of  the  party  accused,  being  of  the  like  condition  and 


TO  THE  PRESIDENT. 


li 


equality  in  the  State.  AncI  by  a “jury”  was  then  under- 
stood. as  it  was  understood  in  Magna  Chart  a , to  mean  ex  vi 
termini , a trial  by  a jury  of  twelve  men  who  must  unanimously 
concur  in  the  guilt  of  the  accused  before  a conviction  can  be 
had. 

This  was  the  universal  understanding  at  the  time  of  the 
adoption  of  the  Constitution.  But  so  great  was  the  jealousy 
of  the  people  that  they  would  leave  nothing  to  inference  or 
the  definitions  of  their  ancient  law.  Hence,  in  1789,  certain 
amendments  were  proposed  and  adopted,  which  declared 
that  “no  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner;  nor  in  time  of  war 
but  in  a manner  'prescribed  by  law that  the  people  should 
be  secure  in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures;  and  that  no  warrant 
should  issue  but  upon  probable  cause  supported  by  oath  or 
affirmation.  And  to  leave  no  doubt  that  a “trial”  meant  a 
proceeding  in  a civil  court,  in  accordance  with  the  rules  of 
the  common  law,  by  which  a presentment  or  indictment  was 
an  indispensable  prerequisite,  it  is  by  the  Vth  amendment 
declared  that  “no  person  shall  be  held  to  answer  for  a capital 
‘or  otherwise  infamous  crime , unless  on  a presentment  or  indict- 
ment of  a grand  jury , except  in  cases  arising  in  the  land  or 
‘ naval  forces,  or  in  the  militia  when  in  actual  service,  in  time 
‘ of  war  or  public  danger ; * * * * nor  be  deprived  of  life , 

‘ liberty , or  property , without  due  process  of  law.” 

That  murder  is  a crime  no  one  will  deny.  It  is  a capital 
and  infamous  crime.  It  is  a felony  of  the  highest  degree. 

“ Presentment  ,”  “ indictment ,”  and  “ grand  jury  ” are  terms  of 
equally  certain  signification. 

A military  commission  could  in  no  sense  fill  the  descrip- 
tion of  the  one  or  the  other.  And  it  is  impossible  to  bring  Mr. 
Alford  within  the  exception;  for  the  offense  was  not  a case 
“ arising  in  the  land  or  naval  forces,  or  in  the  militia  when 
in  actual  service,  in  time  of  war  or  public  danger.”  The  case 


In 


LETTER  OF  THE  AUTHOR 


was  an  offense  against  the  laws  of  Texas.  The  accused  were 
citizens  of  Texas,  in  no  manner  connected  with  the  army  or 
navy.  Therefore,  they  could  not  be  put  upon  trial  in  the 
absence  of  a presentment  or  indictment  found  by  a grand 
jury  of  a court  duly  constituted  under  the  Constitution  and 
laws  of  the  land. 

And  the  amendments  stop  not  here.  The  Ylth  declares 
that  “ in  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
‘right  to  a speedy  and  public  trial  by  an  impartial  jury  of  the 
‘ State  and  district  wherein  the  crime  shall  have  been  committed , 
‘which  district  shall  have  been  previously  ascertained  by  law, 
‘and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion; to  be  confronted  with  the  witnesses  against  *him;  to 
‘have  compulsory  process  for  obtaining  witnesses  in  his  favor; 
‘and  to  have  the  assistance  of  counsel  for  his  defense/’ 

This  Constitution  is  a law  for  rulers  as  well  as  people, 
equally  in  war  and  in  peace,  and  covers  with  the  shield  of 
its  protection  all  classes  of  men,  at  all  times  and  under  all  cir- 
cumstances, {Ex  parte  Milligan,  4 Wallace,  120, 121.)  * 

I call  your  attention  to  the  language  of  this  opinion.  It 
clearly  holds  these  propositions:  The  Yth  amendment  rec- 
ognized the  necessity  of  an  indictment  or  presentment, 
before  any  one  can  be  held  to  answer  for  high  crimes,  with 
the  exceptions  therein  stated;  by  which  it  was  meant  to 
limit  the  trial  by  jury,  in  this  Vlth  amendment,  to  those 
persons  who  were  subject  to  indictment  or  presentment  in 
the  Yth.  Those  connected  with  the  military  or  naval  service 
are  amenable  to  the  jurisdiction  which  Congress  has  created 
for  their  government,  and  while  thus  serving  they  surrender 
the  right  to  be  tried  by  the  civil  courts.  All  other  persons  are 
guaranteed  trial  by  jury.  Civil  liberty  and  martial  law  cannot 
endure  together ; the  antagonism  is  irreconcilable.  Neither  Con- 
gress nor  the  President  can  disturb  one  of  these ‘guarantees  of 
liberty,  except  the  one  concerning  the  writ  of  habeas  corpus . 

I will  not  weary  your  Excellency  with  a number  of  author- 


TO  THE  PRESIDENT. 


liii 


ities.  I stand  ready  with  these,  should  you  submit  the  ques- 
tion to  the  law  officers  of  the  Government. 

The  Constitution  is  the  supreme  law  of  the  land.  It  re- 
quires of  you,  in  common  with  all  other  officers,  an  oath  to 
support  it,  and,  above  all  other  officers,  to  defend  it  And  you 
have  the  high  authority  of  Mr.  Jefferson  for  saying,  that 
when  an  application  is  presented  to  you  for  pardon,  your  first 
duty  is  to  look  to  the  Constitution,  and  to  determine  for  your- 
self whether  the  law  under  which  the  party  has  been  tried 
and  convicted  is  warranted  by  the  Constitution ; and  if,  in 
your  opinion,  it  be  not  warranted,  it  is  your  duty  to  pardon, 
irrespective  of  any  question  about  the  guilt  or  innocence  of 
the  party.  That  great  man,  in  that  same  letter,  (to  Mrs. 
Adams,)  assumed  that  members  of  Congress,  and  the  President, 
in  the  first  instance,  must  determine  for  themselves  upon  the 
constitutionality  of  laws  passed  and  approved  by  them  ; and 
so  must  the  courts,  when  they  try  and  convict;  but  that  on 
an  application  for  pardon,  the  President  must  be  governed  by 
his  own  conscientious  opinions  in  regard  to  the  sacred  instru- 
ment. (4  Jefferson’s  Works,  pp.  556,  560,  561.) 

In  one  of  those  letters  Mr.  Jefferson  said,  “I  discharged 
‘ every  person  under  punishment  or  prosecution  under  the  se- 
dition law,  because  I considered  and  now  consider  that  law 
‘to  be  a nullity,  as  absolute  and  as  palpable  as  if  Congress 
dad  ordered  us  to  fall  down  and  worship  a golden  image;  and 
‘that  it  was  as  much  my  duty  to  arrest  its  execution  in  every 
‘ stage,  as  it  would  have  been  to  have  rescued  from  the  fiery  fur- 
‘ nace  those  who  should  have  been  cast  into  it  for  refusing  to 
worship  the  image.”  (4  Jefferson’s  Works,  p.  556.) 

And  in  answer  to  the  argument  that  it  belongs  to  the  judges 
to  determine  the  constitutionality  of  a law,  he  says: 

“You  seem  to  think  it  devolved  on  the  judges  to  decide  on 
the  validity  of  the  sedition  law.  But  nothing  in  the  Consti- 
tution has  given  them  a right  to  decide  for  the  Executive, 
more  than  to  the  Executive  to  decide  for  them.  Both  magis- 
trates are  equally  independent  in  the  sphere  of  action  assigned 


liv 


LETTER  OF  THE  AUTHOR 


to  them.  The  judges,  believing  the  law  constitutional,  had  a 
right  to  pass  a sentence  of  fine  and  imprisonment,  because  the 
power  was  placed  in  their  hands  by  the  Constitution.  But 
the  Executive,  believing  the  law  to  be  unconstitutional,  were 
bound  to  remit  the  execution  of  it,  because  that  power  has 
been  confided  to  them  by  the  Constitution.  That  instrument 
meant  that  its  co-ordinate  branches  should  be  checks  on  each 
other.  But  the  opinion  which  gives  to  the  judges  the  right  to 
decide  what  laws  are  constitutional  and  what  not,  not  only  for 
themselves  in  their  own  sphere  of  action,  but  for  the  legisla- 
ture and  executive  also,  in  their  spheres,  would  make  the  ju- 
diciary a despotic  branch.” 

Jefferson,  the  great  apostle  of  liberty,  the  immortal  author 
of  the  Declaration  of  Independence,  was  spared  half  a century 
after  its  promulgation.  He  never  ceased  to  warn  us  of  any 
approach  towards  the  gulf  of  dissolution  or  the  rock  of  con- 
solidation. On  the  fiftieth  anniversary  his  immortal  spirit, 
with  his  compatriot,  the  head  of  another  school,  John  Adams, 
was  called  to  their  better  land.  They  had  lived  to  learn  that 
error  is  never  dangerous  while  reason  is  left  free  to  combat  it ; 
that  statesmen  may  differ  upon  non-essentials;  that,  under  all 
theories,  the  government  is  for  the  people,  and  that  it  can 
only  be  preserved  by  a jealous  watchfulness  over  every  citizen, 
and  by  enlarging,  rather  than  circumscribing,  the  rights  of 
the  masses.  From  their  graves  these  immortal  apostles  speak 
to  you  to-day;  and  they  tell  you  that,  as  the  Executive  of  this 
mighty  nation,  the  Declaration  of  Independence  and  Constitu- 
tion will  perish  if  you  permit  one  citizen  to  remain  manacled 
with  chains  illegally  forged. 

I beg  to  remind  you,  in  the  memorable  language  of  Queen 
Anne,  on  a notable  occasion : “She  could  inflict  no  punishment 
‘upon  any,  the  meanest  of  her  subjects,  unless  warranted  by 
‘ the  law  of  the  land.”  And  that  warrant  can  only  be  found 
in  the  Constitution,  and  in  the  civil  and  criminal  laws  for  citi- 
zens, and  in  the  rules  and  articles  of  war  for  the  government 
of  soldiers  and  sailors.  But  these  jurisdictions  must  be  kept 
separate,  or  there  is  no  safety  for  either. 


TO  THE  PRESIDENT. 


i 


lv 


You  must  judge  for  yourself  of  the  jurisdiction  and  powers 
of  the  tribunals  which  tried  these  cases,  but  with  no  more 
power  than  I,  or  any  other  citizen,  could  confer  upon  them. 
This  is  a rule  of  universal  application,  whenever  a question  as 
to  the  jurisdiction  of  the  court  which  tried  the  cause  is  pre. 
sented.  The  proposition  is  plain  and  simple.  If  the  military 
commission  had  no  jurisdiction  under  the  Constitution,  its 
acts  were  nullities.  Our  court  of  the  highest  resort  has  sev- 
eral times  thus  enunciated  the  principle  : 

“This  proposition  (as  to  the  conclusiveness  of  a judgment) 
is  true  in  relation  to  every  tribunal  acting  judicially,  whilst 
acting  within  the  sphere  of  their  jurisdiction,  where  no  appel- 
late tribunal  is  created;  and  even  when  there  is  such  an  ap- 
pellate power,  the  judgment  is  conclusive  when  it  only  comes 
collaterally  into  question,  so  long  as  it  is  unreversed.  But  di- 
rectly the  reverse  of  this  is  true  in  relation  to  the  judgment  of 
any  court  acting  beyond  the  pale  of  its  authority.  The  prin- 
ciple upon  this  subject  is  concisely  and  accurately  stated  by 
this  court  in  the  case  of  Elliot  et  al.  vs.  Peirsol  et  al .,  (1  Pet., 
340,)  in  these  words:  ‘Where  a court  has  jurisdiction,  it  has  a 
right- to  decide  every  question  which  occurs  in  the  cause  ; and 
whether  its  decision  be  correct  or  otherwise,  its  judgment, 
until  reversed,  is  regarded  as  binding  in  every  other  court. 
But  if  it  act  without  authority,  its  judgments  and  orders  are 
regarded  as  nullities.  They  are  not  voidable,  but  simply 
void.’  ” (Wilcox  vs.  Jackson,  13  Pet.,  510,  511.) 

This  rule  is  as  applicable  to  one  class  of  officers  and  tribu- 
nals as  another.  The  question  of  power  to  render  the  judgment 
or  to  do  the  act  is  always  open  whenever  and  wherever  the 
record  of  the  judgment  is  offered.  The  general  rules  are  thus 
stated  upon  the  highest  judicial  authority  in  Texas: 

“The  principle  that  a judgment  of  a court  acting  without 
authority  is^  null  seems  to  be  of  universal  application.  The 
only  difference  in  its  effect  on  the  judgments  of  general  and  of 
specially  limited  jurisdiction  is,  that,  in  support  of  the  former 
jurisdiction  is  presumed,  while  in  the  latter  it  must  be  shown ; ' 
but  whenever  the  want  of  power  is  made  to  appear,  its  legal 
effect  is  the  same,  whatever  may  be  the  character  of  the  juris- 
diction. (Cowan  & Hill’s  Notes,  vol.  4,  pp.  206,  214,  and  the 


Ivi 


LETTER  OF  THE  AUTHOR 


cases  cited.)  The  cases  are  numerous  in  which  the  effect  of  a 
want  of  authority  is  enunciated ; and  it  is  thus  perspicuously 
stated  in  Elliot  vs.  Piersol,  (1  Pet.,  328-340.)  ‘Where  a court 
has  jurisdiction,  it  has  a right  to  decide  every  question  which 
occurs  in  the  cause;  and,  whether  its  decision  be  correct  or 
otherwise,  its  judgment,  until  reversed,  is  regarded  as  bind- 
ing in  every  other  court.  But,  if  it  act  without  authority,  its 
judgments  and  orders  are  nullities.  They  are  not  voidable, 
but  simply  void,  and  form  no  bar  to  a recovery  sought  even 
prior  to  a reversal  in  opposition  to  them/ 

“ The  appellant  contends  that  a judgment  of  the  supreme 
court,  having  general  appellate  jurisdiction,  is  conclusive,  un- 
less set  aside  before  the  expiration  of  the  term,  and  that  no 
court  can  look  behind  it;  and  in  support  of  this  position,  refers 
to  the  case  ex  parte  Tobias  Watkins,  (3  Pet.,  193.)  * * 

There  are  repeated  recognitions  in  the  opinions  of  that  court 
of  the  general  rule  as  to  the  legal  consequence  of  the  want  of 
power,  whether  the  jurisdiction  be  general  or  special.  In 
Yoorhies  vs.  The  Bank  of  the  United  States,  (10  Pet.,  474,)  it 
is  said,  in  substance,  that  the  only  difference  between  the  su- 
.preme  court  and  other  courts  is,  that  no  court  can  revise  the 
proceedings  of  the  supreme  court,  but  that  that  difference  dis- 
appears after  the  time  prescribed  for  a writ  of  error  or  appeal 
to  revise  those  of  an  inferior  court  of  the  United  States  or  of 
any  State.  They  stand  on  the  same  footing  in  law.  If  not 
warranted  by  the  Constitution  or  law  of  the  land,  the  most 
solemn  proceedings  of  the  supreme  court  can  confer  no  right, 
which  is  denied  to  any  judicial  act,  under  color  of  law , which 
can  properly  be  deemed  to  have  been  done  coram  nonjudice ; that 
is,  by  persons  assuming  the  judicial  function  in  the  given  case 
without  lawful  authority.  In  Williamson,  et  al.  vs.  Berry  (8 
How.,  540)  it  was  declared,  in  the  opinion  of  a majority  of 
the  court,  to  be  a ‘ well-settled  rule  in  jurisprudence  that  the 
jurisdiction  of  any  court  exercising  authority  over  a subject 
may  be  inquired  into  in  every  other  court,  when  the  proceed- 
ings in  the  former  are  relied  upon  and  brought  before  the  lat- 
ter by  a party  claiming  the  benefit  of  such  proceedings.  The 
rule  prevails,  whether  the  decree  or  judgment  has  been  given 
in  a court  of  admiralty , chancery , ecclesiastical  court , or  court 
of  common  law , or  whether  the  point  ruled  has  arisen  under 
the  laws  of  nations,  the  practice  in  chancery,  or  the  municipal 
laws  of  States/  (3  Hall.,  7 ; 4 Cranch,  241 ; 13  Pet.,  499 ; 3 


TO  THE  PRESIDENT. 


lvii 


How.,  750.)  The  rule  thus  stated  is  sufficiently  broad  to 
cover  the  judgments  of  all  courts , unless , indeed , there  he  a court 
whose  jurisdiction  is  unlimited .”  (Horan  vs.  Wahrenberger,  9 
Tex.,  313,  319.) 

I submit  to  your  Excellency,  for  Mr.  Alford,  that  this  judg- 
ment of  the  military  commission  is  without  authority  of  law; 
that  it  is  unconstitutional,  null  and  void;  and  that,  upon  an 
application  for  pardon,  it  is  not  only  the  right,  but  the  duty 
of  your  Excellency  to  meet  these  questions  squarely,  and  to  de- 
cide in  accordance  with  the  dictates  of  your  own  judgment; 
and,  if  you  believe  the  law  to  be  unconstitutional,  to  disregard 
the  judgment. 

Mr.  President,  I am  aware  that  the  power  to  thus  try  citi- 
zens of  the  United  States  is  claimed  under  the  third  and 
fourth  sections  of  “an  act  to  provide  for  the  more  efficient 
government  of  the  rebel  States.”  The  sections  read  thus: 

“ 3.  It  shall  be  the  duty  of  each  officer  assigned  as  aforesaid 
to  protect  all  persons  in  their  rights  of  person  and  property 
to  suppress  insurrection,  disorder,  and  violence,  and  to  punish, 
or  cause  to  be  punished,  all  distjurbers  of  the  peace  and  crim- 
inals ; and  to  this  end  he  may  allow  local  civil  tribunals  to  take 
jurisdiction  of  and  to  try  offenders,  or,  when  in  his  judgment 
it  may  be  necessary  for  the  trial  of  offenders,  he  shall  have 
power  to  organize  military  commissions  or  tribunals  for  that 
purpose,  and  all  interference  under  color  of  State  authority 
with  the  exercise  of  military  authority  und^r  this  act  shall  be 
null  and  void. 

“4.  All  persons  put  under  military  arrest  by  virtue  of  this 
act  shall  be  tried  without  unnecessary  delay,  and  no  cruel  or 
unusual  punishment  shall  be  inflicted;  and  no  sentence  of  any 
military  commission  or  tribunal  hereby  authorized,  affecting 
the  life  or  liberty  of  any  person,  shall  be  executed  until  it  is 
approved  by  the  officer  in  command  of  the  district,  and  the 
laws  and  regulations  for  the  government  of  the  army  shall 
not  be  affected  by  this  act,  except  in  so  far  as  they  conflict  with 
its  provisions:  Provided , That  no  sentence  of  death  under  the 
provisions  of  this  act  shall  be  carried  into  effect  without  the 
approval  of  the  President.” 

This  law  does  not  create  judicial  tribunals  inferior  to  the 


lviii 


LETTER  OF  THE  AUTHOR 


Supreme  Court  of  the  United  States;  it  creates  no  judicial  tri- 
bunal or  judicial  district;  it  defines  no  crime ; it  creates  no 
offense;  prescribes  no  penalty.  It  speaks  of  “criminals”  and 
“offenders,”  but  gives  no  description  of  what  they  are;  against 
what  law  or  peace  they  have  offended,  or  by  what  statute 
they  are  to  be  tried.  There  is  as  much  power  to  organize 
other  “ tribunals”  as  “military  commissions.”  Neither  could 
be  effected  without  the  exercise  of  legislative  power.  But  the 
sentences  of  the  one  and  the  other  had  to  undergo  the  super- 
vision and  approval  of  the  commanding  general,  and,  in  cap- 
ital cases,  of  the  President.  And  this  brings  us  to  the  direct 
question,  what  is  the  military  power  of  the  President  of  the 
United  States ? The  Constitution  answers:  “The  President 
£ shall  be  commander-in-chief  of  the  army  and  navy  of  the  Uni . 

‘ ted  States , and  of  the  militia  of  the  several  States  when  called 
‘ into  the  actual  service  of  the  United  States  ” 

This  is  the  alpha  and  omega,  the  beginning  and  end,  of  the 
fohole  matter.  The  Constitution  limits ‘the  power  to  the 
“army  and  navy,  and  to  the  militia  when  in  actual  service.” 
The  law  establishes  a code  for  the  government  of  these,  but 
a different  code  for  others.  And  the  Constitution  gives  the 
President  no  power  over  the  citizens  disconnected  with  the 
army  and  navy,  nor  over  the  civil  tribunals  of  the  land.  And, 
having  no  such  power,  the  Congress  could  not  confer  it  upon 
his  subalterns. 

I have  not  overlooked  the  great  arguments  growing  out  of 
the  duration  of  the  rebellion  or  the  necessities  of  the  war.  I 
do  not  deny  that  every  incidental  power  may  be  exercised  to 
preserve  the  powers  delegated  by  the  Constitution,  and  con- 
cede all  that  is  necessary  for  the  restoration  of  republican 
government  and  the  rehabilitation  of  the  States.  No  one  has 
given  to  these  and  to  all  the  constitutional  amendments  a 
more  hearty  support.  But  we  are  not  to  forget  the  great 
cardinal  principles,  that  the  citizen,  unconnected  with  the 
army  or  navy,  cannot  be  denied  the  right  of  trial  by  jury,  in 


TO  THE  PRESIDENT. 


lix 


a judicial  tribunal;  that  through  all  the  struggle,  the  rebels 
never  ceased  to  be  citizens,  answerable  to  the  laws  defining 
treason  and  crime  against  the  United  States,  and  they  re- 
mained entitled  to  trials  under  the  Constitution  and  in  ac- 
cordance with  the  prescribed  laws;  that  the  States  never 
ceased  to  be  States;  and  that  all  their  governments  were 
provisional,  at  least,  with  codes  defining  crimes,  and  civil 
courts  to  punish  these  crimes;  and  therefore  there  never 
could  be  a necessity  for  this  undefined  attempt  to  create  a 
military  jurisdiction  in  defiance  of  the  Constitution,  thus 
“ affecting  to  render  the  military  independent  of  and  supe- 
rior to  the  civil  power.” 

We  may  admit  the  constitutionality  of  the  reconstruction 
laws  so  far  as  they  confer  power  to  re-create  States  and  confer 
suffrage  and  authority  upon  those  who  would  restore  the  gov- 
ernment and  adopt  the  amendments,  and  at  the  same  time 
deny  the  constitutionality  of  this  criminal  jurisdiction,  and 
its  exercise  over  citizens  in  a manner  expressly  forbidden. 

The  great  object  of  these  laws,  and  of  certain  preceding 
measures,  was  to  secure  the  ratification  of  the  Xlllth,  XIVth, 
and  XVth  amendments  to  the  Constitution.  That  has  been 
done — happily  and  wisely  done.  Millions  yet  unborn  will 
bless  the  work.  But  in  perfecting  that  work,  the  first  sec- 
tion of  the  XIVth  amendment  arrays  itself  against  this  exer- 
cise of  military  power: 

“All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States ; nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law , nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.” 

This  leaves  no  doubt  of  Mr.  Alford’s  citizenship ; and  it 
denies  the  power  to  take  away  his  liberty  “ without  due  pro- 
cess of  law”  This  power  had  already  been  denied  to  the 


lx 


LETTER  OF  THE  AUTHOR 


national  Government.  And  it  had  already  been  often  de_ . 
fined  to  mean  ail  the  guaranties  set  forth  in  the  Yth  and  Vlth 
amendments.  (Jones  v.  Montes,  15  Tex.,  353  j Jones  v.  Reynolds, 

2 Tex.,  251.) 

“Nec  super  eum  ibimus , nec  super  eum  mittimus , nisi  per 
‘ legale  judicium , parium  suorum , vel  per  legem  terrce”  [“Neither 
‘will  we  pass  upon  him,  or  condemn  him,  but  by  the  lawful 
‘judgment  of  his  peers  or  the  law  of  the  land.”]  What  law  ? 
Undoubtedly  a pre-existing  rule  of  conduct,  not  an  ex  post  facto 
law,  rescript,  or  decree  made  for  the  occasion — the  purpose  of 
working  the  wrong.  (See  the  authorities  collected  in  Paschal’s 
Annotated  Constitution,  Note  257,  p.  260.) 

Mr.  President,  I feel  that  that  little  book,  which  will  out- 
live me,  would  deserve  to  be  consigned  to  infamy,  with  its 
author,  could  I allow  this  day  to  pass  without  entering  my 
solemn  protest  against  the  longer  incarceration  of  citizens 
under  a proceeding  which  violates  every  principle  of  that 
Constitution  and  every  authority  cited  in  the  commentaries. 

I can  no  more  be  silent  while  the  Constitution  is  being 
trampled  upon  by  the  Federal  authorities  in  time  of  peace, 
than  I could  while  it  was  being  subverted  by  the  Confederate 
authorities  in  time  of  war. 

There  is  a petition  before  you,  signed  by  many  leading 
Republicans  of  Texas,  beseeching  the  exercise  of  your  Execu- 
tive clemency.  There  is  a report  of  the  judge  advocate  who 
tried  the  cause,  indorsed,  I am  told,  by  the  Judge  Advocate 
General,  in  which  it  is  said  that  the  guilt  of  Mr.  Alford  is  not 
satisfactorily  proved.  I am  told  that  there  is  also  a petition 
of  Texas  officials  against  the  pardon.  I have  read  none  of  the 
papers  but  the  first,  and  that  I read  to  your  Excellency  when 
I called  with  the  son  of  the  prisoner.  I know  that  your 
Excellency’s  kind  heart  was  then  strongly  moved  towards 
mercy.  God  forgive  the  men  who  thrust  themselves  between 
the  suffering  man,  kneeling  at  the  footstool  of  power,  sur- 
rounded, as  he  was,  by  an  aged  and  weeping  wife  and  heart- 


TO  THE  PRESIDENT. 


lxi 


broken  children,  and  i mpioring  the  head  of  the  nation  for  forgive- 
ness of  a supposed  offense,  with  which  he  is  charged,  but  for 
which  he  had  never  been  lawfully  tried  or  duly  convicted. 
That  man  holds  up  to  you  the  Constitution  of  his  country, 
and  demands  of  his  accusers  to  try  him  before  a tribunal 
known  to  the  law.  These  men,  who  can  know  nothing  of  the 
proof,  who  can  make  no  argument  in  favor  of  the  power  of 
the  tribunal  which  tried  him,  for  purposes  known  only  to 
themselves,  seek  to  silence  the  voice  of  mercy,  and  to  prevent 
that  examination  which  must  establish  that,  upon  the  supreme 
law  and  the  evidence,  justice  would  require  the  annulment  of 
the  sentence.  But  let  none  complain.  Three  thousand  pro- 
testants  cried  aloud  at  once,  at  the  throne  of  Pontius  Pilate,  and 
secured  the  crucifixion  of  the  God-man,  of  whom  the  judge 
was  obliged  to  say,  “I  find  in  him  no  fault  at  all ! ” 

I put  this  case  upon  a ground  as  sacred  and  holy  as  any 
laws,  save  those  given  by  the  great  Fountain  of  mercy  and 
justice.  I plead  for  a Constitution  violated,  a Declaration  of 
Independence  outraged,  a country  bleeding  and  distracted, 
because  our  rulers  have  not  returned  to  the  plain  landmarks 
of  protection  and  liberty  guaranteed.  And  I demand  that 
no  avengers  of  blood  shall  be  heard  or  heeded  against  this 
prayer. 

Only  the  other  day  those  protestants  against  mercy,  those 
Texas  advocates  of  military  power,  passed  a law  authorizing 
the  declaration  of  martial  law,  military  rule,  military  commis- 
sions, suspension  of  the  writ  of  habeas  corpus  and  civil  law, 
and  the  arbitrary  levy  of  taxes,  worse  than  the  ship-money  of 
James,  by  a despotic  governor.  These  things  and  a nation  of 
liberty  cannot  survive  together.  They  portend  despotism, 
anarchy,  and  ruin.  Your  position  enables  you  to  establish  a 
precedent  in  favor  of  the  Constitution.  The  time  has  come; 
the  States  have  been  restored;  the  pretended  law  under  which 
this  party  was  imprisoned  has  accomplished  its  work,  and 
has  expired  and  become  obsolete.  The  power  to  convoke 


lxii 


LETTER  OE  THE  AUTHOR 


such  another  tribunal  has  ceased,  and,  I trust,  forever.  There- 
fore, there  can  be  no  excuse  for  asking  us  to  make  a judicial 
case,  were  that  possible  or  desirable,  and  it  is  not.  Nay,  such 
a precedent  has  been  avoided  by  every  possible  device.  As 
in  Terger’s  case,  which  did  your  Excellency  honor,  the  par- 
ties could  be  turned  over  to  the  civil  authorities  of  Texas. 

In  the  name  of  the  Constitution,  of  justice,  of  mercy,  and 
of  liberty  prostrated,  I implore  you  to  order  the  discharge 
of  Alford,  and  of  all  others  imprisoned  under  this  law. 

I remain,  very  respectfully, 

GEO.  W.  PASCHAL. 


Note. — Shortly  after  this  letter  the  President  pardoned  all  persons  im- 
prisoned by  sentence  of  military  commissions,  but  he  is  not  known  to  have 
given  any  written  opinion ; nor  is  it  known  how  far  he  adopted  the  argu- 
ments in  this  letter.  The  precedent  is  of  sufficient  value  to  authorize  the 
publication  of  this  appeal  to  the  President. 


TABLE  OF  CONTENTS 


PAGE. 

Abbreviations  op  Authorities xxiii 

Declaration  of  Independence 1-8 

Articles  op  Confederation 9-19 

The  Constitution  op  the  United  States,  without  Notes 22-50 

Directions  for  Reading  the  Annotated  Constitution 51 

The  Constitution  op  the  United  States,  Annotated 51-294 


Articles,  Sections , Glauses , Pages , and  Numbers,  of  Notes  of  the  Constitution  of  the 
United  States , Unnoted  and  Annotated. 

Articles  op  Constitution  of  U.  S. 


Preamble 

Art. 

Sec. 

Cl. 

Pages. 
22,  53 

Notes. 

5-13 

Legislative  Power — Congress 

. . . . I. 

1 

22,  56 

14-15 

House,  Qualifications  of  Voters 

. . . . I. 

2 

1 

22,  56 

16-18 

Members,  Qualifications 

. . . . I. 

2 

2 

23,  66 

19,20 

Representatives’  Taxes — numbers . . . 

, . . . I. 

2 

3 

23,  67 

21-24 

Vacancies 

. . . . I. 

2 

4 

23,  72 

25 

Speaker,  Impeachment 

. . . . I. 

2 

5 

23,  72 

26,  27 

Senators,  Election  Law  of 

. . . . I. 

3 

1 

24,  74 

28-30 

Senators,  Classification 

. . . . I. 

3 

2 

24,  76 

31-34 

Senators,  Qualifications 

. . . . I. 

3 

3 

24,  77 

35 

Vice-President,  List 

. . . . I. 

3 

4 

24,  77 

36,37 

Presiding  Officers,  Names  of 

. . . . I. 

3 

5 

24,  78 

38 

Impeachment 

. . . . I. 

3 

6 

25,  81 

39 

Impeachment,  Judgment 

. . . . I. 

3 

7 

25,  82 

40 

Elections,  Power  of  Congress 

. . . . I. 

4 

1 

25,  83 

41 

Sessions,  Law  fixing 

. . . . I. 

4 

2 

25,  83 

42,43 

Elections  Returns,  Qualifications .... 

. . . . I. 

5 

1 

25,  84 

44-46 

Rules,  Expulsion 

. . . . I. 

5 

2 

26,  86 

47-50 

Journals 

I. 

5 

3 

26,  87 

51 

Ixiii 


lxiv 


CONTEXTS 


Adjournment 

Compensation,  Privilege 

Two  Offices 

Bills,  Revenue : 

Bills,  Veto  History  of 

Joint  Resolutions 

Power  of  Congress 

Taxes,  Duties,  Imposts,  Uniformity 

Borrow  Money 

Commerce 

Naturalization,  Bankruptcy 

Money.  Weights  and  Measures 

Counterfeiting 

Post-offices 

Authors,  Inventors 

Inferior  Tribunals 

/ 

Piracies,  Offenses 

War,  Marque  and  Reprisals 

Armies 

Navy 

Land  and  Naval  Forces 

Militia 

Militia 

Exclusive  Legislation,  Districts,  Forts. . . 

Necessary  Powers 

Migration,  Slaves 

Habeas  Corpus 

Attainder,  Ex  post  facto 

Capitation,  Taxes 

Exports 

Preference 

Treasury,  Appropriations 

Nobility,  Office 

Inhibitions,  States 

Inhibitions,  States,  Congress 

Inhibitions,  Tonnage 

Executive,  Presidents 

Electors 

Election,  Time 

President,  Qualifications 

Vacancy,  Who  Succeeds 


Art. 

Sec. 

Cl. 

Pages. 

Notes. 

I. 

5 

4 

26,  88 

52 

I. 

6 

1 

26,  88 

53-61 

I. 

6 

2 

27,  90 

62, 63 

I. 

7 

1 

27,  90 

64, 65 

I. 

7 

2 

27,  91 

66-69 

I. 

7 

3 

28,  93 

70 

I. 

8 

28,  94 

71 

I. 

8 

1 

28,  94 

72-81 

I. 

8 

2 

28,  103 

83,  84 

I. 

8 

3 

28,  105 

§5-92 

I. 

8 

4 

29,  112 

93-96 

I. 

8 

5 

29.  114 

97, 102 

I. 

8 

6 

29,  118 

103 

I. 

8 

7 

29,  119 

104-106 

I. 

8 

8 

29,  121 

107,108 

I. 

8 

9 

29,  124 

109 

I. 

8 

10 

29,  124 

110-116 

I. 

8 

11 

29,  127 

117-121 

I. 

8 

12 

29,  130 

122-126 

I. 

8 

13 

29,  132 

127-128 

I. 

8 

14 

29,  133 

129 

I. 

8 

15 

29,  133 

130-133 

I. 

8 

16 

30,  135 

134,135 

I. 

8 

17 

30,  136 

136,137 

I. 

8 

18 

30,  138 

138 

I. 

9 

1 

30,  140 

139 

I. 

9 

2 

30,  140 

140, 141 

I. 

9 

3 

31,  146 

142, 143 

I. 

9 

4 

31,  149 

144-145 

I. 

9 

5 

31,  150 

146 

I. 

9 

6 

31,  150 

147,148 

I. 

9 

7 

31,  151 

l 19 

I. 

9 

8 

31,  152 

150,151 

I. 

10 

1 

31,  153 

152-161 

I. 

10 

2 

32,  161 

163,162 

I. 

10 

3 

32,  161 

163,164 

II. 

1 

1 

32,  162 

165,166 

II. 

1 

2 

32,  164 

167 

II. 

1 

3 

34,  167 

168  168c 

II. 

1 

4 

34,  167 

169-171 

II. 

1 

5 

34,  169 

172 

CONTENTS. 

1XV 

Art. 

Sec. 

Cl. 

Pages. 

Notes. 

Compensation,  Salary 

...  H. 

1 

fi 

34, 

no 

173 

Oath  of  President 

. . . II. 

1 

7 

35, 

170 

174 

President’s  Powers 

...  *11. 

2 

1 

35, 

171 

175-177 

Appointments,  Tenure  of  Office 

. . . II. 

2 

2 

35, 

174 

178-184 

Vacancies,  How  filled 

. . . II. 

2" 

3 

36, 

182 

185,186 

President’s  Duties 

. . . II. 

3 

36, 

183 

187-190 

Impeachment  Fully  Discussed 

. . . II. 

4 

36, 

185 

191-194 

Judicial  Power 

...  III. 

1 

36, 

189 

195-198 

Judicial  Power 

...  III. 

2 

1 

31, 

194 

199-209 

Jurisdiction 

...  III. 

2 

2 

31, 

204 

210-211 

Trial,  Crimes 

...  III. 

2 

3 

31, 

209 

212-214 

Treason 

...  HI. 

3 

1 

38, 

211 

215,216 

Punishment 

...  III. 

3 

2 

38, 

213 

217 

Acts,  Records,  Authentication 

...  IV. 

1 

38, 

213 

218,219 

Citizens,  Privileges,  Immunities 

...  IV. 

2 

1 

38, 

222 

220-222 

Fugitives  from  Justice 

..  IV. 

2 

2 

38, 

229 

223-225 

Fugitive  Slaves 

...  IV. 

2 

3 

39, 

232 

226-228 

New  States  List  of 

..  IV. 

3 

1 

39, 

234 

229,230 

Territories 

..  IV. 

3 

2 

39, 

238 

231,232 

Republican  G-overnment. 

...  IV. 

4 

39, 

242 

234-235 

Amendment 

...  V. 

40, 

246 

236 

Debts ‘ 

. ..  VI. 

1 

40, 

247 

237 

Supreme  Law 

...  VI. 

2 

40, 

247 

238-241 

Oath  of  Office 

...  VI. 

3 

40, 

250 

242 

Ratification,  Dates  of . . . . 

..  VII. 

41, 

252 

243 

AMENDMENTS. 

244 

Religion,  Freedom  of  Speech 

...  I.- 

43, 

254 

245-248 

Militia,  Well  Regulated 

. . . II. 

43, 

256 

249 

No  Soldier  shall  be  Quartered 

...  III. 

44,  256 

250 

Seizures,  Searches . . . . 

...  IV. 

44, 

257 

251,252 

Rights  Guaranteed 

...  V. 

44, 

258 

253-259 

Criminal  Prosecutions 

...  VI. 

44,  263 

260-262 

Common  Law 

. . . VII. 

45, 

266 

263-265 

Excessive  Bail,  Cruel  Punishments. . , 

. . . vm. 

45, 

267 

266,  267 

Enumeration,  Rights 

...  IX. 

45, 

268 

268 

Reserved  Powers 

...  X. 

45, 

269 

269 

Judicial  Powers,  States 

...  XI. 

46, 

269 

270-272 

President,  Electors. 

. . , XII. 

1 

46, 

164 

273,168 

u u 

2 

166 

168a 

5 


lxvi 


CONTENTS. 


Art. 

Sec. 

Cl.  Pages. 

Notes. 

Vice-President,  Qualification  . . . 

XII. 

3 

47, 

166 

1686 

Slavery  Abolished 

.......XIII. 

1 

48, 

271 

274 

Slavery,  Powers  of  Congress. . . 

XIII. 

2 

48, 

271 

274 

Citizens,  Rights  guaranteed.... 

XIV. 

1 

48, 

279 

275-279 

Representatives,  Numbers 

XIV. 

2 

48, 

279 

275-280 

Disqualification 

XIV. 

3 

49, 

279 

281 

Public  Debt 

XIV. 

4 

49, 

280 

282 

General  Powers 

5 

50, 

280 

283-285 

TABLE  OF  AUTHORITIES  CITED  AND 
ABBREVIATIONS  USED. 

Ab.  on  Ship , Abbot  on  Shipping. 

Adams John  Adams’  Defense  of  the  American  Constitution. 

Adairs  Rom.  Ant Adams’  Roman  Antiquities. 

Allen Allen’s  (Mass.)  Reports. 

Ala Alabama  Reports. 

Am.  Almanac American  Almanac. 

Am.  Almanac  Rep American  Almanac  Repository. 

Am.  Jur American  Jurist. 

Am.  Lead.  C American  Leading  Cases. 

Am.  L.  J American  Law  Journal. 

Am.  L.  R American  Law  Register, 

And.  Rev.  L Andrew’s  Revenue  Laws. 

Ang.  on  Tidewaters. . . . .Angel  on  Tidewaters. 

Ang.  and  Ames Angel  and  Ames  on  Corporations. 

Archbold’s  Law  of  Bankruptcy. 

Ash.-Ashm Ashmead’s  Reports. 

Bacon’s  Ab Bacon’s  Abridgment. 

Bailey Bailey’s  Reports. 

Bald.  C.  C Baldwin’s  Circuit  Court  Reports. 

Barb. ....  Barbour’s  Reports. 

Barnes Barnes’  Cases  of  Practice. 

Barr Barr’s  Pennsylvania  State  Reports. 

Bates Attorney-General,  Edward  Bates. 

Benton’s  Debates Benton’s  Condensed  Congressional  Debates. 

Benton’s  Thirty  Tears  in  the  Senate. 

Bing Bingham’s  Reports. 

Binn Binney’s  Reports. 

Bevan Bevan’s  Reports. 

Bioren  and  Duane’s  Laws  of  the  United  States. 

Bishop  on  Or.  L Bishop  on  Criminal  Law. 

Black Black’s  Reports. 

Blackf. Blackford’s  Reports. 

Bl.-Bl.  Com Blackstone’s  Commentaries. 

Blackwood Blackwood’s  Reports. 

Blatch. Blatchford’s  Reports. 

Blount’s  Trial. 

Breese  Breese’s  Reports. 

Brightly Brightly ’s  Reports. 

Brightly’s  Dig Brightly’s  Digest  of  Laws  of  U.  S. 

Brock Brockenborough’s  Reports. 

Burr’s  Trial. 

lxvii 


lxviii  AUTHORITIES  AND  ABBREVIATIONS. 

Burr.-Bur Burrow’s  Reports. 

Bynkershoek Bynkershoek  on  War. 

Caine Caine’s  Cases  in  Error. 

Calhoun’s  Essay  on  Government. 

Cal California  Reports. 

Call. . . . Call’s  Reports. 

Camp Campbell’s  Reports. 

Carth Carthew’s  Reports. 

Casey Casey’s  Pennsylvania  State  Reports. 

Chase’s  Trial. 

Chev Cheve’s  Reports. 

Ch.  PI Chitty’s  Pleadings. 

Cicero  pro  Sulla .Cicero’s  Oration  for  Sulla. 

Clark  & Finnell Clark  and  Einnelly’s  Reports. 

Cl.  & Hall Clark  and  Hall’s  Reports. 

Cobb Cobb  on  Slavery. 

Cobbett’s  Parliamentary  History. 

Coke Coke’s  Reports. 

Co.  Litt Coke  on  Littleton. 

ColdwelL Coldwell’s  Reports. 

Comst Comstock’s  Reports. 

Com.  Dig Comyn’s  Digest. 

Cond Peters’s  Condensed  Reports. 

Conn Connecticut  Reports. 

Cow Cowen’s  Reports. 

Crabbe Crabbe’s  Reports. 

Cr Cranch’s  Reports. 

Cr.  C.  C Cranch’s  Circuit  Court  Reports. 

Curt.  C.  C Curtis’  Circuit  Court  Reports. 

Curt.  Com Curtis’  Commentaries. 

Curt.  Hist Curtis’  History  of  the  Constitution. 

Curtis’  Law  of  Patents. 

Cush * Cushing’s  Reports. 

Dali Dallas’  Reports. 

Daveis  . .* Daveis’  Reports. 

De  Lolme De  Lolme’s  Works. 

Den Denio’s  Reports. 

Dev. Devereux’s  Reports. 

Dev.  & Bat Devereux  and  Battle’s  Reports. 

Doug Douglass’s  Reports. 

Duane Duane’s  American  Law. 

Duer Duer’s  Reports. 

Duval Judge  Thomas  H.  Duval. 

Duvall Duvall’s  Reports. 

Dyer Dyer’s  Reports. 

East East’s  Report’s. 

Elliot’s  Deb Elliot’s  Debates. 

Eng.  L.  and  Eq English  Law  and  Equity. 

Farrar Farrar  on  the  Constitution. 

Federalist. 

Finch Finch’s  Reports. 

Fort Fortescue’s  Reports. 


AUTHORITIES  AND  ABBREVIATIONS 


lxix 


Ga Georgia  Reports. 

Gill Gillman’s  Reports. 

Gr ! Greene’s  Reports. 

Gray Gray’s  Reports. 

Greenlf.  Ev Greenleaf’s  Evidence. 

H.  & McH .Harris  amd  McHenry’s  Reports. 

Hagg Haggard’s  Reports. 

Hale  P.  0 Hale’s  Pleas  of  the  Crown. 

Hall  L.  J Hall’s  Law  Journal. 

Hall’s  Journal Hall’s  Journal  of  Jurisprudence. 

Halleck Halleck’s  International  Law. 

Halst Halsted’s  Reports. 

Hare Hare’s  Reports. 

Harg Hargrave’s  State  Trials. 

Harp Harper’s  Reports. 

Harring. — Harrington. . .Harrington’s  Reports. 

Hawk Hawk’s  Reports. 

Hawkins Hawkins’s  Pleas  of  the  Crown. 

Havw Hayward’s  Reports. 

Hemphill’s  Report  on  Internal  Improvements. 

Hemp Hempstead’s  Reports. 

Hickey’s  Const Hickey’s  Constitution. 

Hill Hill’s  N.  Y.  Reports. 

Hough’s  Convention  Manual  of  State  Constitutions. 

How Howard’s  Reports. 

Humph Humphrey’s  Reports. 

Hutch.’s  Hist Hutching’s  History  of  New  England. 

111.  R Illinois  Reports. 

Ind.  Rep Indiana  Reports. 

Ing.  on  Eab.  Corp Ingersoll  on  Habeas  Corpus . 

Ired Iredell’s  Reports. 

Jefferson’s  Manual. 

Jeff.  Corresp Jefferson’s  Correspondence. 

J ohns J ohnson’ s Reports. 

Johns.  Ch Johnson’s  Chancery  Reports. 

Journal  of  Convention. 

Journal  of  the  Senate. 

Journal  of  the  House. 

Kent. — Kent’s  Com Kent’s  Commentaries. 

Kentucky  Resolutions. 

Kern. — Kernan .Kernan’s  Reports. 

Kirby Kirby’s  Reports. 

Law  Mag Law  Magazine. 

Legal  Int Legal  Intelligencer. 

Legare Attorney-General  Legare. 

Leigh Leigh’s  Reports. 

Lewis,  Commissioner  of  Internal  Revenue. 

Lieber Lieber’s  Encyclopedia  Americana. 

Litt. Littell’s  Reports. 

Littleton Coke  on  Littleton. 

Lloyd’s  Debates. 

Lord  King’s  Life  of  Locke. 


i 


lxx  AUTHORITIES  AND  ABBREVIATIONS. 

M.  and  Sel Maule  and  Selwyn’s  Reports. 

Mackeld’s  Civ.  L Mackeld’s  Civil  Law. 

Magna  Charta. 

Marshall’s  Life  of  Washington. 

Mas. — Mas.  C.  C Mason’s  Circuit  Court  Reporta 

Mass Massachusetts  Reports. 

McAllister McAllister’s  Reports. 

McLean McLean’s  Reports. 

Md Maryland  Reports. 

Meigs Meigs’s  Reports. 

Met Metcalf’s  Reports. 

Miles Miles’s  Reports. 

Minn Minnesota  Reports. 

Miss Mississippi  Reports. 

Mo Missouri  Reports. 

Monr Monroe’s  Reports. 

Mont. — Montesq Montesquieu’s  Spirit  of  Laws. 

Moore  Privy  Council. . . .Moore’s  Privy  Council  Reports. 

Mumf . . v Mumford’s  Reports. 

N.  H New  Hampshire  Reports. 

N.  Y.  Herald.  New  York  Herald. 

N.  Y.  Reports.  New  York  Reports. 

O.  Bridge  Reports Sir  Oliver  Bridge’s  Reports. 

0 Ohio  Reports. 

Op Opinions  of  the  Attorney-General, 

Paige Paige’s  Reports. 

Paine  Paine’s  Reports. 

Paschal’s  Annotated  Digest  of  the  Laws  of  Texas. 

Peake Peake’s  Cases. 

Penn.. Pennington’s  Reports. 

Penn.  L.  J Pennsylvania  Law  Journal. 

Penn.  State Pennsylvania  State  Reports. 

Pet Peters’s  Reports. 

Pet.  C.  C Peters’s  Circuit  Court  Reports. 

Phila.  R Philadelphia  Reports. 

Philadelphia  Ledger. 

Phillimore Phillimore’s  International  Law. 

Pick Pickering’s  Reports. 

Pitk Pitkin’s  History  of  the  United  States. 

Pittsburg  L.  J Pittsburg  Legal  Journal. 

Port Porter’s  Reports. 

Puffendorf Puffendorfs  Works. 

Randolph Randolph’s  Reports. 

Rawle Rawle’s  Reports. 

Rawle’s  Const Rawle  on  the  Constitution. 

Rich Richardson’s  Reports. 

Salkeld Salkeld’s  Reports. 

Sandf . , .Sandford’s  Reports. 

S.  C Same  Case. 

Scam Scammon’s  Reports. 

Sedgwick  on  Statutory  and  Constitutional  Law. 

Seld Selden’s  Reports. 


AUTHORITIES  AND  ABBREVIATIONS. 


lxxi 

Senate  Journal. 

Serg.  Const Sergeant  on  the  Constitution. 

S.  & R Sergeant  and  Rawle’s  Reports. 

Shep Shepley’s  Reports. 

Shepherd Shepherd’s  Touchstone. 

Smith Smith’s  (Penn.)  Reports. 

Smith’s  Leading  Cases 
Smith’s  Wealth  of  Nations. 

So.  Car South  Carolina  Reports. 

Speed Attorney-General,  James  Speed. 

Spelman.. . Spelman’s  Works. 

Stanbery Attorney-General,  Henry  Stanbery 

Stewart Stewart’s  Reports. 

Stanton Attorney-General,  Edwin  Stanton, 

Story Story’s  ReportSL 

Story’s  Confl.  of  L Story’s  Conflict  of  Laws. 

Story’s  Const Story  on  the  Constitution. 

Story  on  Cont Story  on  Contracts. 

Strange Strange’s  Reports. 

Sumner’s Sumner’s  Reports. 

Taylor’s  Civil  Law. 

Tex Texas  Reports. 

Thatcher  Cr.  C Thatcher’s  Criminal  Cases. 

Tomlin’s  Law  Die Tomlin’s  Law  Dictionary. 

Tucker’s  Black.  App Tucker’S  Blackstone,  Appendix. 

Vallandigham’s  Trial. 

Yattel’s  Law  of  Nations. 

Verm.  R. — Yt.  R Yermont  Reports. 

Yern Yernon’s  Reports. 

Yes Yesey’s  Reports. 

Yesey,  Jr Yesey,  Jr.’s,  Reports. 

Virginia  Resolutions  and  Report. 

Walker.. . * Walker’s  Report. 

Wall Wallace’s  Reports. 

Wall.,  Jr Wallace,  Jr.’s,  Reports. 

Wash.  C.  C Washington  Circuit  Court  Reporta. 

Watts : Watts  Reports. 

Webster’s  Die Webster’s  Dictionary. 

Webster’s  Speeches. 

Wend Wendell’s  Reports. 

Western  Leg.  Obsr Western  Legal  Observer. 

Wharton  La. Wharton’s  Criminal  Law. 

Wharton  on  Homicides. 

Wh. — Wheat Wheaton’s  Reports. 

Wheaton’s  Life  of  Pinckney. 

Wheat.  Int.  L Wheaton’s  International  Law. 

Wheeler’s  Law  of  Slavery. 

Whiting Whiting  on  the  War  Power. 

Wil.  M.  C Wilcock  on  Municipal  Corporations. 

Wils.  Law  Lect Wilson’s  Law  Lectures. 

Will Wille’s  Reports. 

Wirt Attorney-General,  William  Wirt 


lxxii 


AUTHORITIES  AND  ABBREVIATIONS, 


Wis.  R 

Woodeson’s  Lectures. 

Worcester’s  Die 

World  Almanac. 

Yelv 

Yerg 

Zab.  R 


Wisconsin  Reports. 

. Worcester’s  Dictionary. 

.Yelverton’s  Reports. 
.Yerger’s  Reports. 
Zabriskie’s  Reports. 


THE  DECLARATION  OF  INDEPENDENCE. 


A Declaration  Toy  the  Representatives  of  the  United 
States  of  America,  in  Congress  assembled. 

When,  in  the  course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to 
assume,  among  the  powers  of  the  earth,  the  separate 
and  equal  station  to  which  the  laws  of  nature  and  of 
nature’s  God  entitle  them,  a decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men 
are  created  equal ; that  they  are  endowed  by  their 
Creator  with  certain  unalienable  rights  ; that  among 
these,  are  life,  liberty,  and  the  pursuit  of  happiness. 
That,  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  con- 
sent of  the  governed  ; that  whenever  any  form  of 
government  becomes  destructive  of  these  ends,  it  is 
the  right  of  the  people  to  alter  or  to  abolish  it,  and  to 
institute  a new  government,  laying  its  foundation  on 
such  principles,  and  organizing  its  powers  in  such 


2 


THE  DECLARATION  OF  INDEPENDENCE. 


form,  as  to  them  shall  seem  most  likely  to  effect  their 
safety  and  happiness.  Prudence,  indeed,  will  dictate 
that  governments  long'  established,  should  not  be 
changed  for  light  and  transient  causes ; and,  accord- 
ingly, all  experience  hath  shown,  that  mankind  are 
more  disposed  to  suffer,  while  evils  are  sufferable, 
than  to  right  themselves  by  abolishing  the  forms  to 
which  they  are  accustomed.  But,  when  a long  train  of 
abuses  and  usurpations,  pursuing  invariably  the  same 
object,  evinces  a design  to  reduce  them  under  absolute 
despotism,  it  is  their  right,  it  is  their  duty,  to  throw  oft 
such  government,  and  to  provide  new  guards  for  their 
future  security.  Such  has  been  the  patient  sufferance 
of  these  colonies,  and  such  is  now  the  necessity  which 
constrains  them  to  alter  their  former  systems  of  govern- 
ment. The  history  of  the  present  king  of  Great  Britain 
is  a history  of  repeated  injuries  and  usurpations,  all 
having,  in  direct  object,  the  establishment  of  an  ab- 
solute tyranny  over  these  States.  To  prove  this,  let 
facts  be  submitted  to  a candid  world : 

He  has  refused  his  assent  to  laws  the  most  whole- 
some and  necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  laws  of 
immediate  and  pressing  importance,  unless  suspended 
in  their  operation  till  his  assent  should  be  obtained ; 
and,  when  so  suspended,  he  has  utterly  neglected  to 
attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accom- 
modation of  large  districts  of  people,  unless  those 


THE  DECLARATION  OF  INDEPENDENCE. 


3 


people  would  relinquish  the  right  of  representation  in 
the  legislature  ; a right  inestimable  to  them,  and  formi- 
dable to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places 
unusual,  uncomfortable,  and  distant  from  the  deposi- 
tory of  their  public  records,  for  the  sole  purpose  of 
fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses  repeatedly, 
for  opposing,  with  manly  firmness,  his  invasions  on 
the  rights  of  the  people. 

He  has  refused,  for  a long  time  after  such  dissolu- 
tions, to  cause  others  to  be  elected  ; whereby  the 
legislative  powers,  incapable  of  annihilation,  have 
returned  to  the  people  at  large  for  their  exercise  ; the 
State  remaining,  in  the  mean  time,  exposed  to  all  the 
danger  of  invasion  from  without,  and  convulsions 
within. 

He  has  endeavored  to  prevent  the  population  of 
these  States ; for  that  purpose,  obstructing  the  laws 
for  naturalization  of  foreigners  ; refusing  to  pass  others 
to  encourage  their  migration  hither,  and  raising  the 
conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by 
refusing  his  assent  to  laws  for  establishing  judiciary 
powers. 

He  has  made  judges  dependent  on  his  will  alone,  for 
the  tenure  of  their  offices,  and  the  amount  and  pay- 
ment of  their  salaries. 

He  has  erected  a multitude  of  new  offices,  and  sent 


4 


THE  DECLARATION  OF  INDEPENDENCE. 


hither  swarms  of  officers  to  harass  our  people,  and  eat 
out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing 
armies,  without  the  consent  of  our  legislature. 

He  has  affected  to  render  the  military  independent 
of,  and  superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  us  to  a 
jurisdiction  foreign  to  our  constitution,  and  unac- 
knowledged by  our  laws ; giving  his  assent  to  their 
acts  of  pretended  legislation : 

For  quartering  large  bodies  of  armed  troops  among 
us : 

For  protecting  them,  by  a mock  trial,  from  punish- 
ment, for  any  murders  which  they  should  commit  on 
the  inhabitants  of  these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world : 
For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of 
trial  by  jury : 

For  transporting  us  beyond  the  seas  to  be  tried  for 
pretended  offenses : 

For  abolishing  the  free  system  of  English  laws  in  a 
neighboring  province,  establishing  therein  an  arbi- 
trary government,  and  enlarging  its  boundaries,  so  as 
to  render  it  at  once  an  example  and  fit  instrument  for 
introducing  the  same  absolute  rule  into  these  colonies  : 
For  taking  away  our  charters,  abolishing  our  most 
valuable  laws,  and  altering,  fundamentally,  the  pow- 
ers of  our  governments : 


THE  DECLARATION  OF  INDEPENDENCE. 


5 


For  suspending  our  own  legislatures,  and  declaring 
themselves  invested  with  power  to  legislate  for  us  in 
all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us 
out  of  his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts, 
burnt  our  towns,  and  destroyed  the  lives  of  our 
people. 

He  is,  at  this  time,  transporting  large  armies  of 
foreign  mercenaries  to  complete  the  works  of  death, 
desolation,  and  tyranny,  already  begun,  with  circum- 
stances of  cruelty  and  perfidy  scarcely  paralleled  in 
the  most  barbarous  ages,  and  totally  unworthy  the 
head  of  a civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive 
on  the  high  seas,  to  bear  arms  against  their  country,  to 
become  the  executioners  of  their  friends  and  brethren, 
or  to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrection  amongst  us, 
and  has  endeavored  to  bring  on  the  inhabitants  of  our 
frontiers,  the  merciless  Indian  savages,  whose  known 
rule  of  warfare  is  an  undistinguished  destruction  of 
all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  peti- 
tioned for  redress,  in  the  most  humble  terms ; our 
repeated  petitions  have  been  answered  only  by  re- 
peated injury.  A prince,  whose  character  is  thus 
marked  by  every  act  which  may  define  a tyrant,  is 
unfit  to  be  the  ruler  of  a free  people. 


6 


THE  DECLARATION  OP  INDEPENDENCE. 


Nor  have  we  "been  wanting  in  attention  to  onr 
British  brethren.  We  have  warned  them,  from  time  to 
time,  of  attempts  made  by  their  legislature  to  extend 
an  unwarrantable  jurisdiction  over  us.  We  have 
reminded  them  of  the  circumstances  of  our  emigration 
and  settlement  here.  We  have  appealed  to  their 
native  justice  and  magnanimity,  and  we  have  conjured 
them,  by  the  ties  of  our  common  kindred,  to  disavow 
these  usurpations,  which  would  inevitably  interrupt 
our  connections  and  correspondence.  They,  too,  have 
been  deaf  to  the  voice  of  justice  and  consanguinity. 
We  must,  therefore,  acquiesce  in  the  necessity,  which 
denounces  our  separation,  and  hold  them,  as  we  hold 
the  rest  of  mankind,  enemies  in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  UNITED 
STATES  OF  AMERICA,  in  GENERAL  CONGRESS 
assembled,  appealing  to  the  Supreme  Judge  of  the 
World  for  the  rectitude  of  our  intentions,  do,  in  the 
name,  and  by  the  authority  of  the  good  people  of  these 
colonies,  solemnly  publish  and  declare,  That  these 
United  Colonies  are,  and  of  right  ought  to  be,  Free 
and  Independent  States  ; that  they  are  absolved 
from  all  allegiance  to  the  British  crown,  and  that  all 
political  connection  between  them  and  the  State  of 
Great  Britain,  is,  and  ought  to  be,  totally  dissolved ; 
and  that,  as  FREE  AND  INDEPENDENT 
STATES , they  have  full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce,  and  to 
do  all  other  acts  and  things  which  INDEPENDENT 


THE  DECLARATION  OF  INDEPENDENCE. 


7 


STATES  may  of  right  do.  And  for  the  support  of  this 
declaration,  with  a firm  reliance  on  the  protection  of 
Divine  Providence,  we  mutually  pledge  to  each 
other,  our  lives,  our  fortunes,  and  our  sacred  honor 
The  foregoing  declaration  was,  Tby  order  of  Congress, 
engrossed,  and  signed  by  the  following  members  : — 

JOHN  HANCOCK. 


New  Hampshire, 
Josiah  Bartlett, 
William  Whipple, 
Matthew  Thornton. 
Massachusetts  Bay . 
Samuel  Adams, 
John  Adams, 
Robert  Treat  Paine, 
Elbridge  Gerry. 

Rhode  Island, 
Stephen  Hopkins, 
William  Ellery. 

Connecticut, 

Roger  Sherman, 
Samuel  Huntington, 
William  Williams, 
Oliver  Woloott. 

New  York. 
William  Floyd, 
Philip  Livingston, 
Francis  Lewis, 

Lewis  Morris. 

New  Jersey, 
Richard  Stockton, 
John  Witherspoon, 
Francis  Hopkinson, 


John  Hart, 

Abraham  Clark. 

Pennsylvania, 

Robert  Morris, 

Benjamin  Rush, 

Benjamin  Franklin, 

John  Morton, 

George  Clymer, 

James  Smith, 

George  Taylor, 

James  Wilson, 

George  Ross. 

Delaware, 

Csesar  Rodney, 

George  Read, 

Thomas  M’Kean. 

Maryland. 

Samuel  Chase, 

William  Paca, 

Thomas  Stone, 

Charles  Carroll,  of  Carrollton. 

Virginia. 

George  Wythe, 

Richard  Henry  Lee, 

Thomas  Jefferson, 

Benjamin  Harrison, 


8 


AETICLES  OF  COXFEDEKATIOX. 


' Virginia . 


South  Carolina . 
Edward  Rutledge, 
Thomas  Heyward,  Jr. 
Thomas  Lynch,  Jr., 
Arthur  Middleton. 
Georgia. 

Button  Gwinnett, 
Lyman  Hall, 

George  Walton. 


Thomas  Nelson,  Jr., 
Francis  Lightfoot  Lee, 
Carter  Braxton. 


North  Carolina . 
William  Hooper, 
Joseph  Hewes, 

John  Penn. 


j Resolved,  That  copies  of  the  Declaration  be  sent  to  the 
several  assemblies,  conventions,  and  committees,  or  councils 
of  safety,  and  to  the  several  commanding  officers  of  the  conti- 
nental troops ; that  it  be  proclaimed  in  each  of  the  United 
States,  and  at  the  head  of  the  army. 


ARTICLES  OF  CONFEDERATION  AND  PER- 
PETUAL UNION  BETWEEN  THE  STATES. 

The  following  have  been  critically  compared  with 
the  original  Articles  of  Confederation  in  the  Depart- 
ment of  State,  and  found  to  conform  minutely  to  them 
in  text,  letter,  and  punctuation.  It  may  therefore  be 
relied  upon  as  a true  copy. 

TO  ALL  TO  WHOM  THESE  PRESENTS  SHALL 
COME,  WE  THE  UNDERSIGNED  DELEGATES 
OF  THE  STATES  AFFIXED  TO  OUR  NAMES, 
SEND  GREETING. — Whereas  the  Delegates  of  the 
United  States  of  America  in  Congress  assembled  did 
on  the  15th  day  of  November  in  the  Year  of  our  Lord 
1777,  and  in  the  Second  Year  of  the  Independence  of 


ARTICLES  OF  CONFEDERATION. 


9 


* 


.America  agree  to  certain  articles  of  Confederation  and 
perpetual  Union  between  the  States  of  New  Hamp- 
shire, Massachusetts-bay,  Rhode-island  and  Providence 
Plantations,  Connecticut,  New-York,  New-Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  - 
Carolina,  South-Carolina,  and  Georgia,  in  the  words 
following,  viz. 

“ ARTICLES  OF  CONFEDERATION  AND  PER- 
PETUAL UNION  BETWEEN  THE  STATES  OF 
NEW  HAMPSHIRE,  MASSACHUSETTS-BAY, 
RHODE-ISLAND  AND  PROVIDENCE  PLAN- 
TATIONS, CONNECTICUT,  NEW-YORK,  NEW- 
JERSEY,  PENNSYLVANIA,  DELAWARE, 
MARYLAND,  VIRGINIA,  N ORTH-C AROLINA, 
SOUTH-CAROLINA,  AND  GEORGIA. 

ARTICLE  I.  The  Stile  of  this  confederacy  shall  be 
“ The  United  States  of  America.” 

ARTICLE  II.  Each  state  retains  its  sovereignty, 
freedom  and  independence,  and  every  Power,  Juris- 
diction and  right,  which  is  not  by  this  confederation 
expressly  delegated  to  the  united  states,  in  congress 
assembled. 

ARTICLE  III.  The  said  states  hereby  severally 
enter  into  a firm  league  of  friendship  with  each  other, 
for  their  common  defence,  the  security  of  their  Liber- 
ties, and  their  mutual  and  general  welfare,  binding 
themselves  to  assist  each  other,  against  all  force  offered 
to,  or  attacks  made  upon  them,  or  any  of  them,  on  ac- 
count of  religion,  sovereignty,  trade,  or  any  other  pre- 
tence whatever. 

6 


10 


ARTICLES  OF  CONFEDERATION. 


ARTICLE  IY.  The  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the  people 
of  the  different  states  in  this  union,  the  free  inhabitants 
of  each  of  these  states,  paupers,  vagabonds,  and  fugi- 
tives from  Justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  several 
states  ; and  the  people  of  each  state  shall  have  free  in- 
gress and  regress  to  and  from  any  other  state,  and  shall 
enjoy  therein  all  the  privileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions  and  restrictions 
as  the  inhabitants  thereof  respectively,  provided  that 
such  restriction  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  state,  to  any 
other  state  of  which  the  Owner  is  an  inhabitant ; pro- 
vided also  that  no  imposition,  duties  or  restriction  shall 
be  laid  by  any  state,  on  the  property  of  the  united 
states,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason, 
felony,  or  other  high  misdemeanor  in  any  state,  shall 
flee  from  Justice,  and  be  found  in  any  of  the  united 
states,  he  shall  upon  demand  of  the  Governor  or  execu- 
tive power,  of  the  state  from  which  he  fled,  be  delivered 
up  and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  df  these 
states  to  the  records,  acts  and  judicial  proceedings  of 
the  courts  and  magistrates  of  every  other  state. 

ARTICLE  V.  For  the  more  convenient  management 
of  the  general  interest  of  the.  united  states,  delegates 
shall  be  annually  appointed  in  such  manner  as  the  legis- 
lature of  each  state  shall  direct,  to  meet  in  congress  on 
the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  state,  to  recal  its  delegates,  or 


ARTICLES  OE  CONFEDERATION. 


11 


f 

any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead,  for  the  remainder  of  the  Year. 

No  state  shall  he  represented  in  congress  by  less  than 
two,  nor  by  more  than  seven  members ; and  no  per- 
son shall  be  capable  of  being  a delegate  for  more  than 
three  years  in  any  term  of  six  years ; nor  shall  any 
person,  being  a delegate,  be  capable  of  holding  any 
office  under  the  united  states,  for  which  he,  or  another 
for  his  benefit  receives  any  salary,  fees  or  emolument 
of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any 
meeting  of  the  states,  and  while  they  act  as  members 
of  the  committee  of  the  states. 

In  determining  questions  in  the  united  states,  in  con- 
gress assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  congress  shall  not 
be  impeached  or  questioned  in  any  Court,  or  place  out 
of  congress,  and  the  members  of  congress  shall  be  pro- 
tected in  their  persons  from  arrests  and  imprisonments, 
during  the  time  of  their  going  to  and  from,  and  attend- 
ance on  congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

ARTICLE  VI.  No  state  without  the  Consent  of  the 
•united  ■ states  in  congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance  or  treaty  with  any 
King  prince  or  state  ; nor  shall  any  person  holding 
any  office  of  profit  or  trust  under  the  united  states,  or 
any  of  them,  accept  of  any  present,  emolument,  office 
or  title  of  any  kind  whatever  from  any  king,  prince  or 
foreign  state ; nor  shall  the  united  states  in  congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty, 


12 


ARTICLES  OE  CONFEDERATION'. 


confederation  or  alliance  whatever  between  them,  with 
out  the  consent  of  the  united  states  in  congress  assem- 
bled, specifying  accurately  the  purposes  for  which  the 
same  is  to  be  entered  into,  and  how  long  it  shall  con- 
tinue. 

No  state  shall  lay  any  imposts  or  duties,  which  may 
interfere  with  any  stipulations  in  treaties,  entered  into 
by  the  united  states  in  congress  assembled,  with  any 
king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  congress,  to  the  courts  of  France 
and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace 
by  any  state,  except  such  number  only,  as  shall  be 
deemed  necessary  by  the  united  states  in  congress  as- 
sembled, for  the  defence  of  such  state,  or  its  trade  ; nor 
shall  any  body  of  forces  be  kept  up  by  any  state,  in 
time  of  peace,  except  such  number  only,  as  in  the  judg- 
ment of  the  united  states,  in  congress  assembled,  shall 
be  deemed  requisite  to  garrison  the  forts  necessary  for 
the  defence  of  such  state  ; but  every  state  shall  always 
keep  up  a well  regulated  and  disciplined  militia,  suffi- 
ciently armed  and  accoutred,  and  shall  provide  and 
have  constantly  ready  for  use,  in  public  stores,  a due 
number  of  field  pieces  and  tents,  and  a proper  quantity 
of  arms,  ammunition  and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent 
of  the  united  states  in  congress  assembled,  unless 
such  state  be  actually  invaded  by  enemies,  or  shall 
have  received  certain  advice  of  a resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  state, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a 
delay,  till  the  united  states  in  congress  assembled 
can  be  consulted : nor  shall  any  state  grant  commis- 


ARTICLES  OE  CONFEDERATION. 


13 


sions  to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  he  after  a declaration  of 
war  by  the  united  states  in  congress  assembled,  and 
then  only  against  the  kingdom  or  state  and  the  subjects 
thereof,  against  which  war  has  been  so  declared,  and 
under  such  regulations  as  shall  be  established  by  the 
united  states  in  congress  assembled,  unless  such  state 
be  infested  by  pirates,  in  which  case  vessels  of  war 
may  be  fitted  out  for  that  occasion,  and  kept  so  long  as 
the  danger  shall  continue,  or  until  the  united  states  in 
congress  assembled  shall  determine  otherwise. 

ARTICLE  VII.  When  land-forces  are  raised  by  any 
state  for  the  cbmmon  defence,  all  officers  of  or  under 
the  rank  of  colonel,  shall  be  appointed  by  the  legislature 
of  each  state  respectively  by  whom  such  forces  shall 
be  raised,  or  in  such  manner  as  such  state  shall  di- 
rect, and  all  vacancies  shall  be  filled  up  by  the  state 
which  first  made  the  appointment. 

ARTICLE  VIII.  All  charges  of  war,  and  all  other 
expenses  that  shall  be  incurred  for  the  common  defence 
or  general  welfare,  and  allowed  by  the  united  states  in 
congress  assembled,  shall  be  defrayed  out  of  a common 
treasury,  which  shall  be  supplied  by  the  several  states, 
in  proportion  to  the  value  of  all  land  within  each  state, 
granted  to  or  surveyed  for  any  Person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be 
estimated  according  to  such  mode  as  the  united  states 
in  congress  assembled,  shall  from  time  to  time,  direct 
and  appoint.  The  taxes  for  paying  that  proportion 
shall  be  laid  and  levied  by  the  authority  and  direction 
of  the  legislatures  of  the  several  states  within  the  time 
agreed  upon  by  the  united  states  in  congress  assembled. 


14 


ARTICLES  OF  CONFEDERATION. 


ARTICLE  IX.  The  united  states  in  congress  assem- 
bled, shall  have  the  sole  and  exclusive  right  and  power 
of  determining  on  peace  and  war,  except  in  the  cases 
mentioned  in  the  sixth  article — of  sending  and  receiv- 
ing ambassadors — entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  states 
shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners,  as  their  own  people  are  subjected 
to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatsoever — 
of  establishing  rules  for  deciding  in  all  cases,  what 
captures  on  land  or  water  shall  be  legal,  and  in  what 
manner  prizes  taken  by  land  or  naval  forces  in  the 
service  of  the  united  states  shall  be  divided  or  appro- 
priated— of  granting  letters  of  marcfue  and  reprisal  in 
times  of  peace — appointing  courts  for  the  trial  of  pira- 
cies and  felonies  committed  on  the  high  seas  and  estab- 
lishing courts  for  receiving  and  determining  finally 
appeals  in  all  cases  of  captures,  provided  that  no 
member  of  congress  shall  be  appointed  a judge  of  any 
of  the  said  courts. 

The  united  states  in  congress  assembled  shall  also  be 
the  last  resort  on  appeal  in  all  disputes  and  differences 
now  subsisting  or  that  hereafter  may  arise  between 
two  or  more  states  concerning  boundary,  jurisdiction  or 
any  other  cause  whatever ; which  authority  shall  always 
be  exercised  in  the  manner  following.  Whenever  the 
legislative  or  executive  authority  or  lawful  agent  of 
any  state  in  controversy  with  another  shall  present  a 
petition  to  congress,  stating  the  matter  in  question  and 
praying  for  a hearing,  notice  thereof  shall  be  given  by 
order  of  congress  to  the  legislative  or  executive  author- 


ARTICLES  OF  CONFEDERATION. 


15 


ity  of  the  other  state  in  controversy,  and  a day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint  by  joint  consent, 
commissioners  or  judges  to  constitute  a court  for  hear- 
ing and  determining  the  matter  in  question  : but  if  they 
cannot  agree,  congress  shall  name  three  persons  out  of 
each  of  the  united  states,  and  from  the  list  of  such  per- 
sons each  party  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced 
to  thirteen  ; and  from  that  number  not  less  than  seven, 
nor  more  than  nine  names  as  congress  shall  direct,  shall 
in  the  presence  of  congress  be  drawn  out  by  lot,  and 
the  persons  whose  names  shall  be  so  drawn  or  any  five 
of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a major 
part  of  the  judges  who  shall  hear  the  cause  shall  agree 
in  the  determination  : and  if  either  party  shall  neglect 
to  attend  at  the  day  appointed,  without  showing  rea- 
sons, which  congress  shall  judge  sufficient,  or  being 
present  shall  refuse  to  strike,  the  congress  shall  proceed 
to  nominate  three  persons  out  of  each  state,  and  the 
secretary  of  congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing  ; and  the  judgment  and  sen- 
tence of  the  court  to  be  appointed,  in  the  manner  before 
prescribed,  shall  be  final  and  conclusive  ; and  if  any 
of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronounce  sen- 
tence, or  judgment,  which  shall  in  like  manner  be  final 
and  decisive,  the  judgment  or  sentence  and  other  pro- 
ceedings being  in  either  case  transmitted  to  congress, 
and  lodged  among  the  acts  of  congress  for  the  security 
of  the  parties  concerned : provided  that  every  commis- 


/ 


16  ARTICLES  OR  CONFEDERATION. 

sioner,  before  he  sits  in  judgment,  shall  take  an  oath 
to  be  administered  by  one  of  the  judges  of  the  supreme 
or  superior  court  of  the  state,  where  the  cause  shall  be 
tried,  “ well  and  truly  to  hear  and  determine  the  mat- 
ter in  question,  according  to  the  best  of  his  judgment, 
without  favour,  affection  or  hope  of  reward  provided 
also  that  no  state  shall  be  deprived  of  territory  for  the 
benefit  of  the  united  states. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  states, 
whose  jurisdictions  as  they  may  respect  such  lands, 
and  the  states  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall  on  the  petition  of  either 
• party  to  the  congress  of  the  united  states,  be  finally 
determined  as  near  as  may  be  in  the  same  manner  as  is 
before  prescribed  for  deciding  disputes  respecting  terri- 
torial jurisdiction  between  different  states. 

The  united  states  in  congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regula- 
ting the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  states — fixing 
the  standard  of  weights  and  measures  throughout  the 
United  States — regulating  the  trade  and  managing  all 
affairs  with  the  Indians,  not  members  of  any  of  the 
states,  provided  that  the  legislative  right  of  any  state 
within  its  own  limits  be  not  infringed  or  violated — estab- 
lishing or  regulating  post-offices  from  one  state  to 
another,  throughout  all  the  united  states,  and  exacting 
such  postage  on  the  papers  passing  thro’  the  same  as 
may  be  requisite  to  • defray  the  expenses  of  the  said 
office — appointing  all  officers  of  the  land  forces,  in  the 


ARTICLES  OF  CONFEDERATION. 


17 


service  of  the  united  states,  excepting  regimental 
officers — appointing  all  the  officers  of  the  naval  forces, 
and  commissioning  all  officers  whatever  in  the  service 
of  the  united  states — making  rules  for  the  government 
and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

The  united  states  in  congress  assembled  shall  have 
authority  to  appoint  a committee,  to  sit  in  the  recess 
of  congress,-  to  be  denominated  ‘ ‘ A Committee  of  the 
States,”  and  to  consist  of  one  delegate  from  each  state  ; 
and  to  appoint  such  other  committees  and  civil  officers 
as  may  be  necessary  for  managing  the  general  affairs  of 
the  united  states  under  their  direction — to  appoint  one 
of  their  number  to  preside,  provided  that  no  person  be 
allowed  to  serve  in  the  office  of  president  more  than 
one  year  in  any  term  of  three  years  ; to  ascertain  the 
necessary  sums  of  Money  to  be  raised  for  the  service 
of  the  united  states,  and  to  appropriate  and  apply  the 
same  for  defraying  the  public  expenses — to  borrow 
money,  or  emit  bills  on  the  credit  of  the  united  states, 
transmitting  every  half  year  to  the  respective  states  an 
account  of  the  sums  of  money  so  borrowed  or  emitted, — 
to  build  and  equip  a navy — to  agree  upon  the  number 
of  land  forces,  and  to  make  requisitions  from  each  state 
for  its  quota,  in  proportion  to  the  number  of  white 
inhabitants  in  such  state ; which  requisition  shall  be 
binding,  and  thereupon  the  legislature  of  each  state 
shall  appoint  the  regimental  officers,  raise  the  men  and 
cloath,  arm  and  equip  them  in  a soldier  like  manner,  at 
the  expense  of  the  united  states ; and  the  officers  and 
men  so  cloathed,  armed  and  equipped  shall  march  to 
the  place  appointed,  and  within  the  time  agreed  on  by 
the  united  states  in  congress  assembled : But  if  the 


18 


ARTICLES  OF  CONFEDERATION. 


united  states  in  congress  assembled  shall,  on  consi- 
deration of  circumstances  judge  proper  that  any  state 
should  not  raise  men,  or  should  raise  a smaller  number 
than  its  quota,  and  that  any  other  state  should  raise  a 
greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  cloathed,  armed 
and  equipped  in  the  same  manner  as  the  quota  of  such 
state,  unless  the  legislature  of  such  state  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of 
the  same,  in  which  case  they  shall  raise,  officer,  cl  oath, 
arm  and  equip  as  many  of  such  extra  number  as  they 
judge  can  be  safely  spared.  And  the  officers  and  men 
so  cloathed,  armed  and  equipped,  shall  march  to  the 
place  appointed,  and  within  the  time  agreed  on  by  the 
united  states  in  congress  assembled. 

The  united  states  in  congress  assembled  shall  never 
engage  in  a war,  nor  grant  letters  of  marque  and  repri- 
sal in  time  of  peace,  nor  enter  into  any  treaties  or 
alliances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defence  *and  welfare  of  the  united  states,  or  any 
of  them,  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  united  states,  nor  appropriate  money,  nor 
agree  upon  the  number  of  vessels  of  war,  to  be  built 
or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a commander  in  chief  of  the  army 
or  navy,  unless  nine  states  assent  to  the  same  : nor  shall 
a question  on  any  other  point,  except  for  adjourning 
from  day  to  day  be  determined,  unless  by  the  votes  of 
a majority  of  the  united  states  in  congress  assembled. 

The  Congress  of  the  united  states  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any 
place  within  the  united  states,  so  that  no  period  of 


ARTICLES  OF  CONFEDERATION. 


19 


adjournment  be  for  a longer  duration  than  the  space  of 
six  months,  and  shall  publish  the  Journal  of  their  pro- 
ceedings monthly,  except  such  parts  thereof  relating 
to  treaties,  alliances  or  military  operations,  as  in  their 
judgment  require  secrecy  ; and  the  yeas  and  nays  of 
the  delegates  of  each  state  on  any  question  shall  be 
. entered  on  the  Journal,  when  it  is  desired  by  any  dele- 
gate ; and  the  delegates  of  a state,  or  any  of  them,  at 
his  or  their  request  shall  be  furnished  with  a transcript 
of  the  said  Journal,  except  such  parts  as  are  above 
excepted,  to  lay  before  the  legislatures  of  the  several 
states. 

ARTICLE  X.  The  committee  of  the  states,  or  any 
nine  of  them,  shall  be  authorized  to  execute,  in  the 
recess  of  congress,  such  of  the  powers  of  congress  as 
the  united  states  in  congress  assembled,  by  the  consent 
of  nine  states,  shall  from  time  to  time  think  expedient 
to  vest  them  with  ; provided  that  no  power  be  delegated 
to  the  said  committee,  for  the  exercise  of  which,  by  the 
articles  of  confederation,  the  voice  of  nine  states  in  the 
congress  of  the  united  states  assembled  is  requisite. 

ARTICLE  XI.  Canada  acceding  to  this  confedera- 
tion, and  joining  in  the  measures  of  the  united  states, 
shall  be  admitted  into,  and  entitled  to  all  the  advantages 
of  this  union : but  no  other  colony  shall  be  admitted 
into  the  same,  unless  such  admission  be  agreed  to  by 
nine  states. 

ARTICLE  XII.  All  bills  of  credit  emitted,  monies 
borrowed  and  debts  contracted  by,  or  under  the  author- 
ity of  congress,  before  the  assembling  of  the  united 
states,  in  pursuance  of  the  present  confederation,  shall 
be  deemed  and  considered  as  a charge  against  the  united 


20 


ARTICLES  OF  CONFEDERATION. 


states,  for  payment  and  satisfaction  whereof  the  said 
united  states,  and  the  public  faith  are  hereby  solemnly 
pledged. 

ARTICLE  XIII.  Every  state  shall  abide  by  the 
determinations  of  the  united  states  in  congress  assem- 
bled, on  all  questions  which  by  this  confederation  is 
submitted  to  them.  And  the  Articles  of  this  confedera- 
tion shall  be  inviolably  observed  by  every  state,  and 
the  union  shall  be  perpetual ; nor  shall  any  alteration 
at  any  time  hereafter  be  made  in  any  of  them  ; unless 
such  alteration  be  agreed  to  in  a congress  of  the  united 
states,  and  be  afterwards  confirmed  by  the  legislatures 
of  every  state. 

And  Whereas  it  hath  pleased  the  Great  Governor  of 
the  World  to  incline  the  hearts  of  the  legislatures  we 
respectively  represent  in  congress,  to  approve  of,  and 
to  authorize  us  to  ratify  the  said  articles  of  confedera- 
tion and  perpetual  union.  Know  Ye  that  we  the  under- 
signed delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in 
the  name  and  in  behalf  of  our  respective  constituents, 
fully  and  entirely  ratify  and  confirm  each  and  every  of 
the  said  articles  of  confederation  and  perpetual  union, 
and  all  and  singular  the  matters  and  things  therein  con- 
tained : And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall 
abide  by  the  determinations  of  the  united  states  in  con- 
gress assembled,  on  all  questions,  which  by  the  said 
confederation  are  submitted  to  them.  And  that  the 
articles  thereof  shall  be  inviolably  observed  by  the 
states  we  respectively  represent,  and  that  the  union 
shall  be  perpetual.  In  witness  whereof  we  have  here- 
unto set  our  hands  in  Congress.  Done  at  Philadelphia 


ARTICLES  OF  COK3  EDERATION. 


21 


in  the  state  of  Pennsylvania  the  9th  Day  of  July  in 
the  Year  of  our  Lord,  1778,  and  in  the  3d  year  of  the 
Independence  of  America. 


Josiah  Bartlett, 

John  Hancock, 
Samuel  Adams, 
Elbridge  Gerry, 

William  Ellery, 
Henry  M'archant, 

Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 

Jas.  Duane, 

Fras  Lewis, 

Jn°  Witherspoon, 

Rob1  Morris, 

Daniel  Roberdeau, 
Jona  Bayard  Smith, 


John  Wentworth,  jun. 
August  8 th,  17 7 8, 

Francis  Dana, 

James  Lovell, 

Samuel  Holten, 

John  Collins, 


Titus  Hosmer, 
Andrew  Adam, 

William  Duer, 
Gouvr  Morris, 

Hath1  Scudder, 

William  Clingan, 
Joseph  Reed, 

22  d July,  1*778, 


On  the  part  and  behalf 
of  the  state  of  New 
Hampshire. 

1 On  the  part  and  behalf 
v of  the  state  of  Mas- 
} sachusetts*Bay. 

• On  the  part  and  behalf 
/ of  the  State  of  Rho&e- 

j*  Island  and  Providence 
•}  Plantations. 

!On  the  part  and  behalf 
of  the  state  of  Con-, 
necticut. 

On  the  part  and  behalf 
of  the  state  of  New. 
York. 

) On  the  part  and  behalf  of 
V the  state  of  New-Jer- 
) sey,  Nov.  26th,  1778. 
) On  the  part  and  behalf 
>-  of  the  state  of  Penn- 
) sylvania. 

) On  the  part  and  behalf 
> of  the  state  of  Dela- 
) ware. 

) On  the  part  and  behalf 
V of  the  state  of  Mary- 
) land. 

1 On  the  part  and  behalf 
> of  the  state  of  Yir- 
) ginia. 

) On  the  part  and  behalf 
> of  the  state  of  North. 

) Carolina. 

) On  the  part  and  behalf 
> of  the  state  of  South- 
) Carolina. 

On  the  part  and  behalf 
of  the  state  of  Georgia 


Tho.  MlKean,  Feb.  12,  1779,  Nicholas  Yan  Dyke, 
John  Dickinson,  May  5,  1779, 


John  Hanson, 

March  1st,  1781, 

Richard  Henry  Lee, 
John  Banister, 

Thomas  Adams, 

John  Penn, 

July  21st,  1778, 

Henry  Laurens, 

William  Henry  Drayton, 
Jn°  Matthews, 

Jn°  Walton, 

24th  July,  1778, 


Daniel  Carroll, 

March  1st,  1781, 

Jno  Harvie, 

Francis  Lightfoot  Lee, 

Corns  Harnett, 

Jn°  Williams, 

RichJ  Hutson, 

Thos.  Heyward,  jun. 

Edwd  Telfair, 

Edwd  Lang  worthy, 


CONSTITUTION 


OF  THE 

UNITED  STATES  OF  AMERICA, 


We  the  People  of  the  United  States,  in  order  to  forir 
a more  perfect  Union,  establish  Justice,  insure  domes 
tic  Tranquillity,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Bles- 
sings of  Liberty  to  ourselves  and  our  Posterity,  do 
ordain  and  establish  this  Constitution  for  the  United 
States  of  America, 

ARTICLE.  I. 

Section.  1.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a Congress  of  the  United  States, 
which  shall  consist  of  a Senate  and  House  of  Repre- 
sentatives. 

Section.  2.  ’The  House  of  Representatives  shall 
be  composed  of  Members  chosen  every  second  Year  by 
the  People  of  the  several  States,  and  the  Electors  in  each 
State  shall  have  the  Qualifications  requisite  for  Electors 
of  the  most  numerous  Branch  of  the  State  Legislature. 


CONSTITUTION  OF  THE  UNITED  STATES. 


23 


’No  Person  shall  be  a Representative  who  shall  not 
have  attained  to  the  Age  of  twenty  five  Years,  and  been 
seven  Years  a Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

s Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Num- 
bers, which  shall  be  determined  by  adding  to  the 
whole  Number  of  free  Persons,  including  those  bound 
to  Service  for  a Term  of  Years,  and  excluding  Indians 
not  taxed,  three  fifths  of  all  other  Persons.  The  actual 
Enumeration  shall  be  made  within  three  Years  after 
the  first  Meeting  of  the  Congress  of  the  United  States, 
and  within  every  subsequent  Term  of  ten  Years,  in 
such  Manner  as  they  shall  by  Law  direct.  The  Num- 
ber of  Representatives  shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall  have  at  Least 
one  Representative  ; and  until  such  enumeration  shall 
be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  chuse  three,  Massachusetts  eight,  Rhode-Island  and 
Providence  Plantations  one,  Connecticut  five,  New- 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Dela- 
ware one,  Maryland  six,  Virginia  ten,  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

4 When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies. 

6 The  House  of  Representatives  shall  chuse  their 


24 


CONSTITUTION  OF  THE  UNITED  STATES. 


Speaker  and  other  Officers  ; and  shall  have  the  sole 
Power  of  Impeachment. 

Section.  3.  1 The  Senate  of  the  United  States  shall 

be  composed  of  two  Senators  from  each  State,  chosen 
by  the  Legislature  thereof,  for  six  Years ; and.  each 
Senator  shall  have  one  vote. 

* Immediately  after  they  shall  be  assembled  in  Conse- 
quence of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  Classes.  The  Seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the  Ex- 
piration of  the  second  Year,  of  the  second  Class  at  the 
Expiration  of  the  fourth  Year,  and  of  the  third  class  at 
the  Expiration  of  the  sixth  Year,  so  that  one-tlfird  may 
be  chosen  every  second  Year  ; and  if  Vacancies  happen 
by  Resignation,  or  otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

’No  Person  shall  be  a Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine 
Years  a Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  for 
which  he  shall  be  chosen. 

4 The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 

6 The  Senate  shall  chuse  their  other  Officers,  and  also 
a President  pro  tempore,  in  the  Absence  of  the  Vice 


CONSTITUTION  OF  THE  UNITED  STATES. 


25 


President,  or  when  he  shall  exercise  the  Office  of  Pre- 
sident of  the  United  States. 

s The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation.  When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside : And  no  Person  shall  be  convicted  without 

the  Concurrence  of  two  thirds  of  the  Members  present. 

7 Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  Disqualifica- 
tion to  hold  and  enjoy  any  Office  of  honour,  Trust  or 
Profit  under  the  United  States : but  the  Party  con- 
victed shall  nevertheless  be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  accord- 
ing to  Law. 

Section.  4.  ’The  Times,  Places  and  Manner  of 
holding  Elections  for  Senators  and  Representatives, 
shall  be  prescribed  in  each  State  by  the  Legislature 
thereof  ; but  the  Congress  may  at  any  time  by  Law 
make  or  alter  such  Regulations,  except  as  to  the  places 
of  chusing  Senators. 

2 The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  Law  appoint  a 
different  Day. 

Section.  5.  1 Each  House  shall  be  the  J udge  of  the 

Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a Majority  of  each  shall  constitute  a Quorum 
7 


26 


CONSTITUTION  OF  THE  UNITED  STATES. 


to  Business ; but  a smaller  Number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

3 Each  House  may  determine  the  Rules  of  its  Proceed- 
ings, punish  its  Members  for  disorderly  Behaviour, 
and,  with  the  Concurrence  of  two  thirds,  expel  a 
Member. 

3 Each  House  shall  keep  a Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy  ; and 
the  Yeas  and  Nays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those 
Present,  be  entered  on  the  Journal. 

‘Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

» 

Section.  6.  1 The  Senators  and  Representatives 

shall  receive  a Compensation  for  their  Services,  to  be 
ascertained  by  Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony  and  Breach  of  the  Peace,  be  privi- 
leged from  Arrest  during  their  Attendance  at  the  Ses- 
sion of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same ; and  for  any  Speech  or 
Debate  in  either  House,  they  shall  not  be  questioned 
in  any,  other  Place. 


CONSTITUTION  OF  THE  UNITED  STATES. 


27 


uNo  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  he  appointed  to  any 
civil  Office  under  the  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  encreased  during  such  time  ; 
and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a Member  of  either  House  during  his 
Continuance  in  Office. 

Section.  7.  1 All  Bills  for  raising  Revenue  shall 

originate  in  the  House  of  Representatives  ; but  the 
Senate  may  propose  or  concur  with  Amendments  as  on 
other  Bills. 

s Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a Law,  be  presented  to  the  President  of  the  United 
States  ; If  he  approve  he  shall  sign  it,  but  if  not  he 
shall  return  it,  with  his  Objections  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the  Ob- 
jections at  large  on  their  Journal,  and  proceed  to 
reconsider  it.  If  after  such  Reconsideration  two  thirds 
of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be 
sent,  together  with  the  Objections,  to  the  other  House, 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap- 
proved by  two  thirds  of  that  House,  it  shall  become  a 
Law.  But  in  all  such  Cases  the  Yotes  of  both  Houses 
shall  be  determined  by  yeas  and  Nays,  and  the  Names 
of  the  Persons  voting  for  and  against  the  Bill  shall  be 
entered  on  the  Journal  of  each  House  respectively!.  If 


28 


CONSTITUTION  OF  THE  UNITED  STATES. 


any  Bill  sliall  not  "be  returned  by  the  President  within 
ten  Days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a law,  y in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by 
their  Adjournment  prevent  its  Return,  in  which  Case 
it  shall  not  be  a Law. 

"Every  Order,  Resolution,  or  Yote  to  which  the  Con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a question  of  Adjourn- 
ment) shall  be  presented  to  the  President  of  the  United 
States  ; and  before  the  Same  shall  take  Etfect,  shall  be 
approved  by  him,  or  being  disapproved  by  him,  shall 
be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limita- 
tions prescribed  in  the  Case  of  a Bill. 

Section.  8.  The  Congress  shall  have  Power 

1 To  lay  and  collect  Taxes,  Duties,  Imposts  and  Ex- 
cises ; to  pay  the  Debts  and  provide  for  the  common 
Defence  and  general  Welfare  of  the  United  States  ; but 
all  Duties,  Imposts  and  Excises  shall  be  uniform 
throughout  the  United  States  ; 

5 To  borrow  Money  on  the  credit  of  the  United 
States ; 

3 To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes  ; 

4 To  establish  an  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  through- 
out tli§  United  States ; 


CONSTITUTION  OF  THE  UNITED  STATES. 


29 


6 To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures  ; 

6 To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States  ; 

I To  establish  Post  Offices  and  post  Roads  ; 

8 To  promote  the  progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Invent- 
ors the  exclusive  Right  to  their  respective  Writings 
and  Discoveries ; 

'To  constitute  Tribunals  inferior  to  the  supreme 
Court ; 

10  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations ; 

II  To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land 
and  Water ; 

“ To  rai'se  and^support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a longer  Term  than 
two  Years  ; 

13  To  provide  and  maintain  a Navy  ; 

14  To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces  ; 

15  To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and 
repel  Invasions ; 

16  To  provide  for  organizing,  arming,  and  disciplining, 
the  Militia,  and  for  governing  such  Part  of  them  as  may 


30 


CONSTITUTION  OF  THE  UNITED  STATES. 


be  employed  in  tbe  Service  of  the  United  States,  reserv- 
ing to  the  States  respectively,  the  Appointment  of  the 
Officers,  and  the  Authority  of  training  the  Militia  accord- 
ing to  the  Discipline  prescribed  by  Congress  ; 

17  To  exercise  exclusive  Legislation  in  all  Cases  what- 
soever, over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and 
the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise  like 
Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  Same  shall 
be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
Dock-Yards,  and  other  needful  Buildings  ; — And 

18  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department 
or  Officer  thereof. 

/ 

Section.  9.  1 The  Migration  or  Importation  of  such 

Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a Tax  or  Duty  may  be  imposed  on  such 
Importation,  not  exceeding  ten  dollars  for  each  Per- 
son. 

3 The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 


CONSTITUTION  OF  THE  UNITED  STATES. 


31 


3 No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed.. 

4 No  Capitation,  or  other  direct,  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration 
herein  before  directed  to  be  taken. 

5 No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

6 No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another : nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in 
another. 

’ No  Money  shall  be  drawn  from  the  Treasury,  but 
in  Consequence  of  Appropriations  made  by  Law  ; and 
a regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

8 No  Title  of  Nobility  shall  be  granted  by  the  United 
States : And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the 
Congress,  accept  of  any  present,  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or 
foreign  State. 

Section.  10.  1 No  State  shall  enter  into  any  Treaty, 

Alliance,  or  Confederation  ; grant  Letters  of  Marque 
and  Reprisal ; coin  Money  ; emit  Bills  of  Credit ; make 
any  Thing  but  gold  and  silver  Coin  a Tender  in  Pay- 
ment of  Debts ; pass  any  Bill  of  Attainder,  ex  post 


32 


CONSTITUTION  OF  THE  UNITED  STATES. 


facto  Law,  or  Law  impairing  the  Obligation  of  Con- 
tracts, or  grant  any  Title  of  Nobility. 

2 No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex- 
cept what  may  be  absolutely  necessary  for  executing 
it’s  inspection  Laws : and  the  net  Produce  of  all  Duties 
and  Imposts,  laid  by  any  State  on  Imports  or  Exports, 
shall  be  for  the  Use  of  the  Treasury  of  the  United 
States ; and  all  such  Laws  shall  be  subject  to  the  Revi- 
sion and  Controul  of  the  Congress. 

8 No  State  shall;  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of 
War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  Delay. 

ARTICLE.  II. 

Section.  1.  1 The  executive  Power  shall  be  vested 

in  a President  of  the  United  States  of  America.  He 
shall  hold  his  Office  during  the  Term  of  four  Years, 
and,  together  with  the  Vice  President,  chosen  for  * the 
same  Term,  be  elected,  as  follows 

2 Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a Number  of  Elec- 
tors, equal  to  the  whole  Number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled 
in  the  Congress:  but  no  Senator  or  Representative, 


CONSTITUTION  OF  THE  UNITED  STATES. 


33 


or  Person  holding  an  Office  of  Trust  or  Profit  under 
the  United  States,  shall  he  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  Persons,  of  whom  one  at 
least  shall  not  he  an  Inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a List  of  all  the 
Persons  voted  for,  and  of  the  Number  of  Votes  for 
each ; which  List  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  Seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  the  Presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
Certificates,  and  the  Votes  shall  then  he  counted. 
The  Person  having  the  greatest  Number  of  Votes 
shall  he  the  President,  if  such  Number  he  a Major- 
ity of  the  whole  Number  of  Electors  appointed ; and 
if  there  he  more  than  one  who  have  such  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House 
of  Representatives  shall  immediately  chuse  hy  Ballot 
one  of  them  for  President ; and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the* List  the 
said  House  shall  in  like  Manner  chuse  the  President. 
But  in  chusing  the  President,  the  Votes  shall  he  taken 
hy  Stales,  the  Representation  from  each  State  having 
one  Vote  ; A Quorum  for  this  Purpose  shall  consist  of 
a Member  or  Members  from  twothirds  of  the  States, 
and  a Majority  of  all  the  States  shall  he  necessary  to  a 
Choice.  In  every  Case,  after  the  Choice  of  the  Presi- 
dent, the  Person  having  the  greatest  Number  of  Votes 


34 


CONSTITUTION  OF  THE  UNITED  STATES. 


of  the  Electors  shall  he  the  Vice  President.  But  if 
there  should  remain  two  or  more  who  have  equal 
Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the 
Vice  President. 

3 The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give 
their  Votes  ; which  Day  shall  be  the  same  throughout 
the  United  States. 

4 No  Person  except  a natural  born  Citizen,  or  a Citizen 
of  the  United  States,  at  the  time  of  the  Adoption  of  this 
Constitution,  shall  be  eligible  to  the  Office  of  President ; 
neither  shall  any  Person  be  eligible  to  that  Office  who 
shall  not  have  attained  to  the  Age  of  thirty  five  Years, 
and  been  fourteen  Years  a Resident  within  the  United 
States. 

6 In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  dis- 
charge the  Powers  and  Duties  of  the  said  Office,  the 
same  shall  devolve  on  the  Vice  President,  and  the  Con- 
gress may  by  Law  provide  for  the  Case  of  Removal, 
Death,  Resignation,  or  Inability,  both  of  the  President 
and  Vice  President,  declaring  what  Officer  shall  then 
act  as  President,  and  such  Officer  shall  act  accordingly, 
until  the  Disability  be  removed,  or  a President  shall 
be  elected. 

' The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a Compensation,  which  shall  neither  be 
encreased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 


CONSTITUTION  OF  THE  UNITED  STATES. 


35 


within  that  Period  any  other  Emolument  from  the 
tJnited  States,  or  any  of  them. 

7 Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation  : — 

“I  do  solemnly  swear  (or  affirm)  that  Fwill  faithfully 

* 

“execute  the  Office  of  President  of  the  United  States, 
“and  will  to  the  best  of  my  Ability,  preserve,  pro- 
“ tect  and  defend  the  Constitution  of  the  United  States.” 

• 

Section.  2.  1 The  President  shall  be  Commander 

in  Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States,  when  called 
into  the  actual  Service  of  the  United  States ; he  may 
require  the  Opinion,  in  writing,  of  the  principal 
Officer  in  each  of  the  executive  Departments,  upon 
any  Subject  relating  to  the  Duties  of  their  respective 
Offices,  and  he  shall  have  Power  to  grant  Reprieves 
and  Pardons  for  Offences  against  the  United  States, 
except  in  Cases  of  Impeachment. 

2 He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur ; and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of 
the  Senate,  shall  appoint  Ambassadors,  other  public 
Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose 
Appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  Law  : but  the  Con- 
gress may  by  Law  vest  the  Appointment  of  such  infe- 


36 


CONSTITUTION  OF  THE  UNITED  STATES. 


rior  Officers,  as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  De- 
partments. 

’The  President  shall  have  Power  to  fill  up  all  Ya- 
cancies  that  may  happen  during  the  Recess  of  the 
Senate,  by  granting  Commissions  which  shall  expire 
at  the  End  of  their  next  Session. 

Section.  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient ; he  may,  on  ex- 
traordinary Occasions,  convene  both  Houses,  or  either 
of  them,  and  in  Case  of  Disagreement  between  them, 
with  Respect  to  the  Time  of  Adjournment,  he  may 
adjourn  them  to  such  Time  as  he  shall  think  proper ; 
he  shall  receive  Ambassadors  and  other  public  Minis- 
ters ; he  shall  take  Care  that  the  Laws  be  faithfully 
executed,  and  shall  Commission  all  the  officers  of  the 
United  States. 

« 

Section.  4.  The  President,  Vice  President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

ARTICLE  III. 

Section.  1.  The  judicial  Power  of  the  United 
States,  shall  be  vested  in  one  supreme  Court,  and  in 


CONSTITUTION  OF  TIIE  UNITED  STATES. 


37 


such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the 
supreme  and  inferior  Courts,  shall  hold  their  Offices 
during  good  Behavior,  and  shall,  at  stated  Times,  re- 
ceive for  their  Services,  a Compensation,  which  shall 
not  be  diminished  during  their  Continuance  in  Office. 

Section.  2.  'The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitu- 
tion, the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Authority  ; 
— to  all  Cases  affecting  Ambassadors,  other  public 
Ministers,  and  Consuls  ; — to  all  Cases  of  admiralty  and 
maritime  Jurisdiction  ; — to  Controversies  to  which  the 
United  States  shall  be  a Party; — to  Controversies 
between  two  or  more  States ; — between  a State  and 
Citizens  of  another  State  ; — between  Citizens  of  differ- 
ent States, — between  Citizens  of  the  same  State  claiming 
Lands  under  Grants  of  different  States,  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States,  Citi- 
zens or  Subjects. 

2 In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a State 
shall  be  Party,  the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

3 The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 


38  CONSTITUTION  OP  THE  UNITED  STATES. 

ment,  shall  he  by  Jury  ; and  such  Trial  shall  be  held 
in  the  State  where  the  said  Crimes  shall  have  been 
committed  ; but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Con- 
gress may  by  Law  have  directed. 

Section.  3.  ’Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or  in 
adhering  to  their  Enemies,  giving  them  Aid  and  Com- 
fort. No  Person  shall  be  convicted  of  Treason  unless 
on  the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,  or  on  Confession  in  open  Court. 

2 The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason 
shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

ARTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given 
in  each  State  to  the  public  Acts,  Records,  and  judicial 
Proceedings  of  every  other  State.  And  the  Congress 
may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  and  Proceedings  shall  be  proved, 
and  the  Effect  thereof. 

% 

Section.  2.  'The  Citizens  of  each  State  shall  be 
entitled  to  all  Privileges  and  Immunities  of  Citizens  in 
the  several  States. 

2 A Person  charged  in  any  State  with  Treason, 
Felony,  or  other  Crime,  who  shall  flee  from  Justice, 


CONSTITUTION  OF  THE  UNITED  STATES.  39 

and  be  found  in  another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from  which  he'  fled, 
be  delivered  up,  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime. 

3 No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such 
Service  or  Labour  may  be  due. 

Section.  3.  1 New  States  may  be  admitted  by  the 

Congress  into  this  Union ; but  no  new  State  shall  be 
formed  or  erected  within  the  Jurisdiction  of  any  other 
State  ; nor  any  State  be  formed  by  the  Junction  of  two 
or  more  States,  or  Parts  of  States,  without  the  Consent 
of  the  Legislatures  of  the  States  concerned  as  well  as 
of  the  Congress. 

2 The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the' 
Territory  or  other  Property  belonging  to  the  United 
States ; and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

Section.  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a Republican  Form  of 
Government,  and  shall  protect  each  of  them  against 
Invasion,  and  on  Application  of  the  Legislature,  or  of 


40 


CONSTITUTION  OF  THE  UNITED  STATES. 


the  Executive  (when  the  Legislature  cannot  be  con 
vened)  against  domestic  Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two-thirds  of  the  several  States,  sllall  call  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as 
Part  of  this  Constitution,  when  ratified  *by  the  Legisla- 
tures of  three  fourths  of  the  several  States,  or  by  Con- 
ventions in  three  fourths  thereof,  as  the  one  or  the 
other  Mode  of  Ratification  may  be  proposed  by  the 
Congress  ; Provided  that  no  Amendment  which  may 
be  made  prior  to  the  Year  one  thousand  eight  hundred 
and  eight  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  in  the  Ninth  Section  of  the  first  Article  ; and 
that  no  State,  without  its  Consent,  shall  be  deprived  of 
its  equal  Suffrage  in  the  Senate. 

ARTICLE.  VI. 

1 All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation. 

2 This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof ; and  all 
Treaties  made,  or  which  shall  be  made,  under  the 


CONSTITUTION  OF  THE  UNITED  STATES. 


41 


authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land  ; and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

3 The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  Affirmation,  to  support  this  Constitution ; but  no 
religious  Test  shall  ever  be  required  as  a Qualification 
to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE.  YII. 

The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  Establishment  of  this  Consti- 
tution between  the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  Septem- 
ber in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven  and  of  the  Indepen- 
dance  of  the  United  States  of  America  the  Twelfth. 
In  witness  whereof  We  have  hereunto  subscribed 
our  Names, 

CEO  WASHINGTON— 
Presidt  and  deputy  from  Virginia 

NEW  HAMPSHIRE. 

John  Langdon,  Nicholas  Gilman. 

MASSACHUSETTS. 

Nathaniel  Goeham,  Rufus  King. 


42 


CONSTITUTION  OF  THE  UNITED  STATES. 


CONNECTICUT. 

Vm,  Sa-Mx.  Johnson,  Roger  Sherman. 

NEW  YORK. 

Alexander  Hamilton. 

NEW  JERSEY. 


Wil  : Livingston, 

David  Beeaeley, 

Wm.  Paterson, 

Jona.  Dayton. 

PENNSYLVANIA. 

B.  Feanklin, 

Thomas  Mifflin, 

Robt.  Moeeis, 

Geo:  Clymee, 

Tho:  Fitzsimons, 

Jaeed  Ingeesoll, 

James  Wilson, 

Gouv:  Moeeis. 

DELAWARE. 

Geo:  Read, 

Gunning  Bedfoed,  Jun’r, 

John  Dickinson, 

Richard  Bassett, 

Jaco:  Beoom. 

MARYLAND. 

James  M’Heney 

Dan  : of  St.  Thos.  Jenifer, 

Danl.  Caeeoll. 

VIRGINIA. 

John  Blaie, 

James  Madison,  Jr., 

• 

NORTH  CAROLINA. 

Wm.  Blount 

Rich’d  Dobbs  Spaight, 

Hu.  Williamson. 

SOUTH  CAROLINA. 

J.  Rutledge, 

Charles  Cotesworth  Pinckney, 

Charles  Pinckney,  Pierce  Butler. 


CONSTITUTION  OF  THE  UNITED  STATES. 


43 


GEORGIA. 

William  Few,  Abe.  Baldwin. 

Attest : WILLIAM  JACKSON,  Secretary, 


ARTICLES 

IN  ADDITION  TO,  AND  AMENDMENT  OF 

THE  CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA, 

Proposed  by  Congress , and  ratified  by  the  Legisla- 
tures of  the  several  States , pursuant  to  the  fifth 
article  of  the  original  Constitution. 

(ARTICLE  1.) 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  there- 
of ; or  abridging  the  freedom  of  speech,  or  of  the 
press  ; or  the  right  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  Government  for  a redress  of 
grievances. 

(ARTICLE  2.) 

A well  regulated  Militia,  being  necessary  to  the  se- 
curity of  a free  State,  the  right  of  the  people  to  keej^ 
and  bear  Arms,  shall  not  be  infringed. 


44 


CONSTITUTION  OF  THE  UNITED  STATES. 


(ARTICLE  III.) 

No  Soldier  shall,  in  time  of  peace  "be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor  in 
time  of  war,  hut  in  a manner  to  he  prescribed  hy  law. 

(ARTICLE  IY.) 

The  right  of  the  people  to  he  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  he  violated,  and  no 
Warrants  shall  issue,  hut  upon  probable  cause,  sup- 
ported hy  Oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  he  searched,  and  the  persons  or 
things  to  he  seized. 


(ARTICLE  Y.) 

No  person  shall  he  held  to  answer  for  a capital,  or 
otherwise  infamous  crime,  unless  on  a presentment  or 
indictment  of  a Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in 
actual  service  in  time  of  War  or  public  danger ; nor 
shall  any  person  he  subject  for  the  same  offence  to-be 
twice  put  in  jeopardy  of  life  or  limb ; nor  shall  he 
compelled  in  any  Criminal  Case  to  he  a witness  against 
himself,  nor  he  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ; nor  shall  private  property 
he  taken  for  public  use,  without  just  compensation. 

(ARTICLE  VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 


CONSTITUTION  OF  THE  UNITED  STATES. 


45 


the  right  to  a speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation ; to  be  con- 
fronted with  the  witnesses  against  him  ; to  have  Com- 
pulsory process  for  obtaining  Witnesses  in  his  favour, 
and  to  have  the  Assistance  of  Counsel  for  his  defence. 

(ARTICLE  VII.) 

In  Suits  at  common  law,  where  the  value  in  contro- 
•versy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved,  and  no  fact  tried  by  a jury 
shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  in- 
flicted. 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people. 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the 


46 


CONSTITUTION  OF  THE  UNITED  STATES. 


Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people. 

ARTICLE  XI. 

The  Judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United 
States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State. 

ARTICLE  XII. 

1 The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice  President,  one  of . 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves  ; they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Yice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  President 
of  the  Senate ; — The  President  of  the  Senate  shall,  in 
presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted ; — The  person  having  the  greatest  number  of 
votes  for  President,  shall  be  the  President,  if  such 
number  be  a majority  of  the  whole  number  of  Electors 
appointed  ; and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers  not  ex- 


CONSTITUTION  OF  THE  UNITED  STATES. 


47 


ceeding  three  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  shall  choose  immediately, 
Tby  "ballot,  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  he  taken  by  states,  the  representa- 
tion from  each  state  having  one  vote ; a quorum  for 
this  purpose  shall  consist  of  a member  or  members 
from  two-thirds  of  the  states,  and  a majority,  of  all  the 
states  shall  be  necessary  to  a choice.  And  if  the  House 
of  Representatives  shall  not  choose  a President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  Presi- 
dent. 2 The  person  having  the  greatest  number  of  votes 
as  Vice-President,  shall  be  the  Vice-President,  if  such 
number  be  a majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President ; a quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  whole  number  of 
Senators,  and  a majority  of  the  whole  number  shall  be 
necessary  to  a choice.  3 But  no  person  constitutionally 
ineligible  to  the  office  of  President  shall  be  eligible  to 
that  of  Vice-President  of  the  United  States. 

Note. — 1.  The  Editor  has  availed  himself  of  the  foregoing  copies  of  the 
original  Constitution  and  Amendments  found  in  the  valuable  work  of  Mr.  W. 
Hickey,  who  obtained  the  certificate  of  the  Secretary  of  State  that  they  were 
“correct,  in  text,  letter , and  punctuation ,”  except  as  to  “the  small  figures 
designating  the  clauses,”  called  by  printers  “superior  figures,”  which  were 
“added  merely  for  convenience  of  reference.”  The  certificate  is  by  James 
Buchanan,  Secretary  of  State,  and  dated  July  20th,  1846. 


48 


CONSTITUTION  OF  THE  UNITED  STATES. 


Amendment  of  1st  February,  1865. 

ARTICLE  XIII. 

1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States  ; nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in 
each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  elect- 
ors for  President  and  Vice-President  of  the  U nited  States, 
Representatives  in  Congress,  the  executive  and  judicial 


CONSTITUTION  OF  THE  UNITED  STATES.  49 

officers  of  a State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  rep- 
resentation therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

Section.  3.  No  person  shall  be  a senator  or  repre- 
sentative in  Congress,  or  elector  of  President  and 
Vice-President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who,  hav- 
ing previously  taken  an  oath,  as  a member  of  Congress, 
or  as  an  other  of  the  United  States,  or  as  a member  of 
any  State  legislature,  or  as  an  executive  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a vote  of 
two-thirds  of  each  house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the 


50 


CONSTITUTION  OF  THE  UNITED  STATES. 


United  States,  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave  ; but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  en- 
force, by  appropriate  legislation,  the  provisions  of  this 
article. 


ARTICLE  XV. 

Section  1.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 


DIRECTIONS  FOR  READING  THE  ANNOTATED 

CONSTITUTION. 


1.  Every  noun  will  be  found  in  the  index,  with  reference  to 
article,  section,  clause,  and  pages  where  found. 

2.  The  text  is  in  “long  primer,”  or  the  larger  type,  and 
the  notes  in  “ brevier,”  or  the  smaller  type. 

3.  The  notes  are  numbered  consecutively,  and  they  stand 
between  the  texts  in  the  order  of  the  words  and  phrases 
defined  and  expounded. 

4.  The  marginal  numbers  refer  to  other  notes  having 
relation  to  the  same  subjects-matter. 

5.  The  abbreviations  of  authorities  will  be  found  after  the 
“ Table  of  Contents.” 

6.  The  citations  in  (parenthesis)  show  that  they  have  been 
quoted  in  the  case,  or  by  the  author  to  whom  they  are 
credited. 

7.  The  definitions  are  all  upon  the  highest  authorities, 
and  are  usually  the  first  remark  in  the  note. 

8.  The  interrogations  (?)  in  the  margin  are  for  the  use  of 
teachers. 

9.  The  figures  in  [17.]  are  not  in  the  Constitution  as  filed  m 
the  State  Department,  but  are  inserted  for  convenience, 
because  the  general  mode  of  printing  the  Constitution  is 
with  these  enumerations. 


52 


THE  CONSTITUTION  DEFINED,  2,  3,  4. 


THE  CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA. 


What  is  the  2.  Let  it  be  remembered  : 1.  That  it  is  a government;  2.  That 
Constitution  it  is  the  supreme  law  of  the  land.  Farrar’s  Const.  § 1-4.  And 
tory  ?tS  1S"  lavvs  Union  can  be  enforced  by  its  own  authority,  on  all 

persons  and  subjects-matter,  over  which  jurisdiction  was  granted 
to  any  department  or  officer  of  the  G-overnment  of  the  United 
4 States.  Rhode  Island  v.  Massachusetts,  12  Pet.  657,  729.  It  is 
not  a league,  but  a government.  Gibbons  v.  Ogden,  9 Wheat.  187. 
For  a history  of  the  thirteen  colonies,  until  the  formation  of  the 
Constitution  of  the  United  States,  see  Story’s  Commentaries  on  the 
Constitution,  vol.  1;  Johnson  v.  McIntosh,  8 Wh.  543-573;  Curtis’s 
Hist,  of  the  Const,  chap.  1,  Book  1,  §.  1-197  ; 1 Kent’s  Com.  11th 
Ed.,  sec.  10  and  notes.  See  Stearns  v.  United  States,  2 Paine, 
300. 


Went  into 
l operation 
when  ? 


3.  This  Constitution  went  into  operation  on  the  first  Wednesday 
(4th  day)  of  March,  1789.  Owings  v.  Speed,  5 Wheat.  420;  1 
Kent’s  Com.  219. 


Did  it  create  4.  The  new  government  was  not  a mere  change  in  dynasty,  as  in 
a new  gov-  a form  of  government,  leaving  the  nation  or  sovereignty  the  same, 
ernmen. . atld  ci0^ie(j  with  all  the  rights,  and  bound  by  all  the  obligations  of 
the  preceding  one  ; but  it  was  a new  political  body,  a new  nation, 
then,  for  the  first  time,  taking  its  place  In  the  family  of  nations. 
Scott  v.  Sandford,  19  How.  397. 

Mutations  ? According  to  Mr.  Duane,  the  Constitution  of  the  United  States 
has  passed  through  three  forms:  1.  The  revolutionary;  2.  The 
confederate  ; 3.  The  constitutional ; and  the  first  and  the  third  pro- 
ceeded equally  from  the  people  in  their  original  capacity.  1 Kent’s 
Com.,  11th  Ed..  212,  note  a. 

Was  it  a The  Constitution  is  not  a mere  compact  among  the  States ; but  it 
mere  is  a government  agreed  to  by  the  people  of  the  United  States, 
compact?  j Story’s  Const.,  3d  edition,  § 344-365.  and  notes;  3 Elliot’s  De- 


THE  PREAMBLE,  5. 

bates,  286,  28?,  288,  and  notes;  Webster’s  Speeches,  410  ; Farrar’s 
Const.  § 5-38.  And  whether  it  be  formed  by  compact  between  the 
States,  or  in  any  other  manner,  its  character  is  the  same.  President 
Jackson’s  Proclamation,  10th  Dec.  1833;  Story’s  Const.,  3d  Ed., 
p.  727.  When  adopted  it  was  of  complete  obligation,  and  bound  Its  obliga- 
the  State  sovereignties.  McCulloch  v.  Maryland,  4 Wh.  404;tion? 
Chisholm  v.  Georgia,  2 Dali.  471;  Cohens  v.  Virginia,  6 Wh.  414; 
Metropolitan  Bank  v.  Van  Dyck,  27  1ST.  Y.  Pep.  409.  For  a clear  2 
exposition  of  the  government,  see  Scott  v.  Sandford,  19  How.  396 ; 

Ableman  v.  Booth,  21  How.  506. 

• 

We,  the  People  of  the  United  States,  in  order  to  Preamble, 
form  a more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defense,  5-13. 
promote  the  general  welfare,  and  secure  the  blessings  m 
of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States 
of  America. 

5.  The  preamble  in  the  Constitution  is  constantly  referred  to  by  What  is  the 
statesmen  and  jurists,  to  aid  them  in  the  exposition  of  its  pro-  use  of 
visions.  Chisholm  v.  Georgia,  2 Dali.  475;  Brown  v.  Maryland,  preamb  e ‘ 

12  Wh.  455-6  ; 1 Story’s  Const,  chap.  4,  § 5,  et  seq.  It  is  the  es- 
sence and  epitome  of  the  whole  instrument  by  which  the  govern- 
ment is  ordained  and  created,  and  its  purposes,  authority,  and 
duty  established.  Farrar’s  Const.  § 5. 

It  was  one  of  the  last  clauses  incorporated  in  the  Constitution.  Its  history? 
Farrar,  § 6.  It  was  adopted  after  various  other  forms  had  been 
proposed  and  rejected.  Farrar,  § 6-12  ; 2 Curtis’s  Hist,  of  the  Con- 
stitution, chap.  xii.  372-376. 

(1.)  To  form  a more  perfect  union;  (2.)  to  establish  justice ; What  are  its 
(3.)  to  insure  domestic  tranquillity;  (4.)  to  provide  for  the  com-  divisions ? 
mon  defense ; (5.)  to  promote  the  general  welfare ; (6.)  to  secure 
the  blessings  of  liberty  to  themselves  and  posterity.  (Chisholm 
v.  Georgia,  2 Dallas,  419;  2 Cond.  635,  671.)  Story’s  Const.  § 463  ; 

Farrar,  § 15-17. 

The  differences  of  opinion  of  the  Southern  States  Bights  or  Cal-  How  dif- 
houn  school,  as  they  have  been  called,  may  be  seen  in  the  pre-  |r^^® 
amble  to  the  Constitution  formed  at  Montgomery,  Alabama,  ing^0^n 
March,  1861. 

“ We,  the  people  of  the  Confederate  States,  each  State  acting  in  The  Confed- 
its  sovereign  and  independent  character,  in  order  to  form  a federal  erate  States? 
government,  establish  justice,  insure  domestic  tranquillity,  and  se- 
cure  the  blessings  of  liberty  to  ourselves  and  our  posterity — looking  292* 

to  the  favor  and  guidance  of  Almighty  God — do  ordain  and  esta- 
blish this  Constitution  for  the  Confederate  States  of  America.”  It 
will  thus  be  seen  that  a “ Federal  Government  ” was  substituted 
for  a “more  perfect  union,”  which  may  be  no  great  difference,  as 
“ government”  carries  the  idea  of  perpetuity;  for  although  “ each 


53 

G 

289. 


54 


WE  THE  PEOPLE,  6. 


[Preamble 


269. 

292. 


T9,  80. 


By  whom 
ordained 
and  estab- 
lished ? 


291. 


Was  it  by 
majorities  ? 


What  means 
“ we  the  peo- 
ple ”? 

16, 17,  24,  46, 
169,  220. 


State  acted  in  its  sovereign  capacity,”  the  instrument  was  sub- 
mitted to  conventions  of  the  people  for  ratification.  This  was  the 
South  Carolina  form,  offered  by  Mr.  Rutledge  in  the  Federal  Con- 
vention. Farrar,  § 8.  It  was  at  first  so  adopted,,  but  afterwards 
changed.  2 Curtis,  373.  The  fourth  and  fifth  objects,  “general 
welfare  and  common  defense,”  were  also  omitted,  although  the 
latter  was  retained  in  the  first  clause  of  section  viii.  of  art.  i.,  and 
all  the  war-powers  were  retained.  Paschal’s  Annotated  Digest, 
pp.  86,  88,  notes  216,  217. 

The  parenthetical — “ looking  to  the  favor  of  Almighty  God  ” — 
however  piously  uttered,  met  no  response  from  the  true  Preserver 
of  liberty.  The  actions  of  the  Secessionists,  more  than  any  decla- 
ration in  their  Constitution,  showed  their  belief  in  the  right  of  each 
State  to  retire  from  the  Union. 

6.  “We  the  People.”  The  Constitution  was  ordained  and 
established,  not  by  the  States  in  their  sovereign  capacities,  but, 
emphatically,  by  the  people  of  the  United  States.  Martin  v.  Hun- 
ter’s Lessee,  1 Wh.  324 ; B^ks  v.  Greenleaf,  6 Call,  277.  It  required 
not  the  affirmance  of,  nor  could  it  be  negatived  by,  the  State 
governments.  McCulloch  v.  Maryland,  4 Wheat.  316,  404,  405. 
Cohens  v.  Virginia,  6 Wheat.  264,  413,  414;  1 Kent’s  Com.,  Lect. 
10,  p.  217;  Farrar’s  Const.  § 1-60;  Rhode  Island  v.  Massachu- 
setts, 12  Wheat.  657,  720.  The  true  doctrine  would  seem  to  be,  that 
the  Constitution  was  adopted  by  the  people  of  the  several  States, 
which  had  been  previously  confederated  under  the  name  of  the  Uni- 
ted States,  acting  through  the  delegates  by  whom  they  were  respec- 
tively represented  in  the  convention  which  formed  the  Constitution. 
Baldwin’s  Constitutional  Views,  29-42.  And  see  Worcester  v. 
Georgia,  6 Pet.  569,  where  it  is  said  by  Mr.  Justice  McLean  to  have 
been  formed  “ by  a combined  power  exercised  by  the  people  through 
their  delegates,  limited  in  their  sanctions  to  the  respective  States.” 
And  see  Farrar,  § 1-60.  See  Barron  v.  Mayor  of  Baltimore,  7 Pet. 
243. 

The  Constitution  resulted  neither  from  the  decision  of  a majority 
of  the  people  of  the  Union,  nor  from  that  of  a majority  of  the 
States.  1 Story’s  Const.,  § 360;  Ware  v.  Hylton,  3 Dallas,  199; 
Chisholm  v.  Georgia,  3 Dali.  419;  2 Cond.  668,  671;  2 Elliot’s 
Debates,  47  ; The  Federalist,  Nos.  22,  33,  39. 

The  words,  “We  the  People  of  the  United  States”  and 
“citizens”  are  synonymous  terms,  and  mean  the  same  thing. 
Scott  v.  Sanford,  19  How.  404.  They  are  “the  people  of  the 
several  States;”  “citizens  of  the  United  States;”  “citizens  of 
each  State;”  “numbers,”  “free  persons,”  and  “other  persons.” 
Farrar,  § 30-38. 

The  language  is,  “We  the  People,”  instead  of  “We  the 
States.”  Patrick  Henry,  2 Elliot’s  Debates,  47 ; and  see  1 Elliot’s 
Debates,  91,  92,  110 ; 1 Story’s  Const.  § 348,  note  1 of  3d  ed. 

And  for  a full  exposition  of  the  action  of  the  people,  see  Story’s 
Const.,  § 362-365,  note  4 of  3d  edition;  L Webster’s  Speeches, 
1830,  p.  431 ; 4 Elliot’s  Debates,  326 ; Ma-lison’s  Letter  in  the 
North  American  Review,  October,  1830,  p.  537,  538.  For  the 


Preamble.]  a PERFECT  UNION-JUSTICE,  7,  8. 


55 


forms  of  ratification  by  the  State  Conventions,  see  Hickey’s  Const., 
chap.  2,  pp.  129-192. 

Negroes,  whether  slaves  or  free,  were  not  included  in  the  terms  Were  the 
“ people,”  or  “ citizens  of  the  United  States.”  Scott  v.  Sandford,  Negroes 
19  How.  404-5.  The  case  of  Legrand  v.  Darnell,  2 Pet.  664,  people? 
does  not  conflict  with  this  view.  Id.  423-4.  But  the  States  may  220 
confer  all  the  rights  of  citizenship  upon  an  alien,  or  any  other  per- 
son, so  far  as  that  State  is  concerned ; this,  however,  does  not 
make  him  a citizen  of  the  United  States.  Id.  405-406. 

But  a man  is  not  incapacitated  to  be  a citizen  of  the  United  Can  the 
States  by  the  sole  fact  that  he  is  colored  or  of  African  descent,  and  9#tes  confer 
not  a white  man.  Opinion  of  Attorney-General  Bates,  of  29th  C1  lzens  ip 
Nov.,  1862,  in  which  the  whole  subject  of  citizenship  is  discussed.  220 

There  is  no  authoritative  definition  of  the  phrase  “ citizen  of  the 
United  States.”  Id. 

But  the  question  was  put  to  rest  by  the  Civil  Rights  Bill,  in  the  Declared 
following  words : — the^Ml^ 

11  Be  it  enacted , dec .,  That  all  persons  born  in  the  United  States,  Ritht^Bill? 
and  not  subject  to  any  foreign  power,  excluding  Indians  not  taxed, 
are  hereby  declared  to  be  citizens  of  the  United  States.”  14  St. 
p.  27,  § 1 ; Paschal’s  Annotated  Digest,  Art.  5382. 

There  can  be  no  doubt  of  the  power  of  Congress  to  piss  this  act. 

Smith  v.  Moody,  26  Ind.  307. 

7.  “ In  order  to  form  a more  perfect  Union.”  That  it  should  How  a more 
not,  like  the  Confederation,  be  a mere  treaty,  operating  by  requisi- 

tions  on  the  States ; and  that  the  people,  for  whose  benefit  it  was  u 
framed,  ought  to  have  the  sole  and  exclusive  right  to  ratify,  amend,  292. 
and  control  its  provisions.  (2  Elliot’s  Debates,  (Virginia)  47,  61, 

131,  57,  97,  98 ; 3 Id.  (North  Carolina,)  134, 145 ; 1 Id.  (Masachusetts,) 

72,  110.)  1 Story’s  Const.  § 464,  469-480,  and  notes  to  third  edi- 
tion; Federalist,  Nos.  13,  14,  51. 

The  Government  which  preceded  were  “ Articles  of  Confede-  How  was 
ration  and  Perpetual  Union  between  the  States.”  Ante,  p.  9 ; the (Union 
Story’s  Const.  § 229;  Public  Journals  of  Cong.,  by  Way  and  p°erbf®c^re 
Gideon,  vol.  i. ; 1 Bioren  and  Duane,  Laws  of  U.  S.  6 : Hickey’s  P 
Const.  483. 

It  was  intended  to  make  the  Union  stronger,  by  giving  it  a well-  14, 165, 195. 
balanced  representative  Legislature,  an  Executive,  and  a Judiciary, 
with  guaranties  for  the  enforcement  of  law  ; these  provisions  car- 
ried along  the  idea  of  a “more  perfect”  and  “perpetual  union.” 

See  2 Curtis’s  History  of  the  Constitution. 

» 

8.  To  establish  Justice. — Justice  is  the  constant  and  ardent  What  is 
desire  to  render  to  every  one  that  which  is  his  own.  Justin-  justice  ? 
ian;  Burrill’s  Law  Die.,  Justice.  It  was  probably  used  here  in 
reference  to  the  judicial  power,  as  there  was  neither  executive  293- 
nor  judiciary  under  the  Articles  of  Confederation. — Ed.  Justice 

is  law.  9 Op.  481  (Black).  The  objects  to  be  attained  may  be  I 
found  in  the  jurisdiction  given  in  the  judicial  power,  and  in  the  How 
extradition  obligations,  as  well  as  in  the  general  powers  of  legis-  attained  ? 


66 


TEANQUILLITT — LIBEETY,  9-12.  [Preamble. 


196, 198, 210,  lation  on  specified  subjects,  and  the  inhibitions  upon  the  States. 
224,  225.  Story’s  Const.  § 482-489  ; 2 Kent’s  Com.  333-4. 


How  insure  9.  To  insure  Domestic  Tranquillitt. — This,  doubtless,  means 
domestic  peace  among  and  between  the  States.  And  it  was  sought  to  be 
tranquillity,  attained  by  the  equality  of  representation,  actual  and  proportionate ; 

the  power  to  regulate  commerce  among  the  States ; the  inhibitions 
upon  them ; the  jurisdiction  of  the  Supreme  Court  over  controver- 
21,  89,  161,  sies  between  them;  the  guaranties  of  the  rights  of  the  citizens  in 
162,  220, 223,  each  ; the  rendition  of  criminals  and  persons  held  to  service  ; the 
guaranties  of  republican  forms  of  government,  and  against  domes- 
294«  tic  strife  ; and  the  national  power  of  legislating  over  all  irritating 
subjects.  See  Story’s  Const.  § 490-494;  the  Federalist,  Nos.  9, 
10,  41. 


What  is  the  10.  To  provide  for  the  Common  Defense. — This  means  the 
common  defense  of  the  nation  against  all  enemies,  foreign  and  domestic. 

The  end  was  intended  to  be  attained  by  giving  the  power  to 
Congress  to  declare  war ; to  provide  for  armies  and  navies ; grant 
letters  of  marque  and  reprisal ; forts  and  arsenals ; for  arming  and 
disciplining^he  militia  ; making  treaties  the  supreme  law ; making 
117, 123, 130,  the  President  the  commander-in-chief  of  the  army  and  navy,  and 
175,  238,  240.  0f  the  militia  when  in  actual  service.  Federalist,  Nos.  24,  25,  41 ; 

Ex  parte  Coupland,  26  Tex.  386 ; Paschal’s  Annotated  Digest,  notes 
218,  p.  88-90;  Story’s  Const.  §§  494,  495;  Farrar,  § 95. 


defense  ? 
How 
attained  ? 

295. 


What  is  the 
general  wel- 
fare ? 

79,  80. 


87,  110,  220, 

221. 

296. 


8,  4. 


80. 


What  is 
liberty  ? 

481-483. 


How 
attained  ? 


il.  To  PROMOTE  THE  GrENERAL  WELFARE. — This,  doubtless, 
means  the  general  and  equal  advantages  to  all  the  people  and  the 
States,  arising  from  the  grants  of  power  contained  in  the  Consti- 
tution, as  well  as  the  inhibitions  upon  Congress  and  the  States,  and 
the  guaranties  in  the  Constitution. 

Without  claiming  this  as  a warrant  for  the  exercise  of  doubtful 
implied  powers,  we  may  point  to  the  regulation  of  commerce;  the 
coining  of  money;  post-offices  and  post-roads;  the  acquisition  and 
extent  of  territory ; the  patents  and  copy-rights,  and  the  general 
protection  of  the  citizen  everywhere,  as  vast  blessings,  the  true 
value  of  which  no  one  can  comprehend. — Ed.  See  Story’s  Const. 
497-506. 

The  words  “ common  defense  and  general  welfare  ” were  not  in- 
serted until  4th  Sept.,  1787.  “ Safety  ” seems  to  be  the  first  object. 
(Jay,  Federalist,  Nos.  3,  4),  Farrar,  § 101.  The  same  words  occur  in 
the  first  clause  of  section  7.  See  criticisms  upon  them.  Id. 

1S0.  To  SECURE  THE  BLESSINGS  OF  LIBERTY  TO  OURSELVES  AND 

our  Posterity. 

Civil  liberty  means  the  natural  liberty  of  every  one  to  pursue 
his  own  happiness,  except  so  far  as  he  is  restrained  by  the  laws  of 
the  land.  Burrill’s  Law  Dictionary,  Civil  Liberty  ; Co.  Litt.  116, 
b , 1 Bl.  Com.  125 ; note  5;  2 Kent’s  Com.  26. 

This  was  doubtless  the  liberty  intended  to  be  secured  and  trans- 
mitted to  posterity  in  perpetuity.  The  object  has  been  sought  to 
be  more  permanently  secured  by  the  amendments  incorporating 


Preamble.] 


THE  UNITED  STATES,  13. 


57 


the  great  principles  of  Magna  Charta ; the  reservation  of  powers  Bill  of 
to  the  States ; the  destruction  of  negro  slavery,  which  became  rights, 
dangerous  to  liberty,  and  the  guaranties  to  the  citizen  in  all  the  246. 
Amendments.  Story’s  Const.  § 17,  507-517;  1 Elliot’s  Debates,245'275* 
278,  296,  297,  332;  2 Id.,  47,  96,  136;  3 Id.,  243,  257,  294.  The 
Federalist,  everywhere.  See  Farrar,  §§  34,  104-122. 


13.  “Of  the  United  States  of  America.” — Mr.  Calhoun,  in  his  What  is 

meant  by 
the  United 
Stages  of 
America? 


essay  on  Government  and  in  his  speeches,  contended,  that  this 
meant  “ States  united  ” — that  is,  a league  or  compact — and  not  a 
government.  But  the  true  definition  ^doubtless  is,  the  union  of 
States  under  all  the  restrictions  contained  in  the  Constitution.  “ The 
Government  of  the  United  States.”  Cohens  v.  Virginia,  6 Wheat. 
264.  The  United  States  is  a government,  and  consequently  a body 
politic  and  corporate,  capable  of  attaining  the  objects  for  which  it 
was  created,  by  the  means  which  are  necessary  for  their  attain- 
ment. United  States  v.  Maurice,  2 Brock.  109.  And,  to  the  ex- 
tent of  its  limited  powers,  it  is  supreme.  See  the  Dred  Scott  de- 
cision, and  Abelman  v.  Booth.  Through  the  instrumentality  of  the 
proper  department  to  which  the  delegated  powers  are  confided,  it 
may  enter  into  contracts  not  prohibited  by  law,  and  appropriate 
to  the  just  exercise  of  those  powers.  United  States  v.  Tingey,  5 
Pet.  128.  As  a corporation,  it  has  capacity  to  sue  by  its  corporate 
title.  Dixon  v.  United  States,  1 Brock.  177  ; Dugan  v.  United 
States,  3 Wh.  181.  It  may  compromise  a suit,  and  receive  real 
and  other  property  in  discharge  of  the  debt,  in  trust,  and  sell 
the  same.  United  States  v.  Lane’s  Administrators,  3 McLean, 
365;  Neilson  v.  Lagow,  12  How.  107-8.  The  above  decisions 
quoted  and  approved.  Dikes  v.  Miller,  25  Tex.,  Supp.  289,  and 
held  that,  upon  the  same  principle,  the  owner  of  land  may  file  a 
release  in  the  general  land-office,  and  divest  himself  of  the  right 
to  recover.  Id. ; Paschal’s  Annotated  Digest,  note  4.  Absolute 
sovereignty,  and  complete  supremacy  in  the  exercise  of  all  govern- 
mental powers  confided  to  the  National  Government,  were  in- 
tended to  be  secured;  and  it  is  believed  that  such  intention  was 
accomplished.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  407. 
The  powers  of  the  General  Government  and  of  the  States,  al- 
though both  exist,  and  are  exercised  within  the  same  territorial 
limits,  are  yet  separate  and  distinct  sovereignties,  acting  separately 
and  independently  of  each  other  within  their  respective  spheres. 
And  the  sphere  of  action  appropriated  to  the  United  States  is  as 
far  beyond  judicial  process  issued  by  a State  Judge  or  a State 
Court,  as  if  the  line  of  division  were  traced  by  landmarks  and  monu- 
ments visible  to  the  naked  eye.  (Ableman  v.  Booth,  21  How.  506, 
516);  Metropolitan  Bank  v.  Dan  Dyck,  27  N.  Y.  R.  411.  See 
also  Story’s  Const.  § 413 ; The  People  v.  New  York  Central  Rail- 
road Company,  24  N.  Y.  485,  486  ; Newell  v.  the  People,  3 Seld. 
93;  Gibons  v.  Ogden,  9 Wheat.  188;  Martin  v.  Hunter,  1 Wheat. 
304,  326,  327  ; McCulloch  v.  Maryland,  4 Wheat.  416,  fcfr  the  rules 
of  interpretation  as  to  the  powers  hereinafter  granted. 


2,4,  6. 

Is  it  a corp 
ration  ? 

2,  4, 138. 


2,4. 


Can  it  com- 
promise 
suits  ? 


What  was 
intended  ? 


Distinguish 
the  powers  ? 


71. 

13a 

389. 

395. 


58  LEGISLATIVE  POWER,  14,  15,  16.  [Art.  I.,  Sec.  1,.2., 


Where  is  the 
legislative 
power  ? 


What  is 
legislative 
power  ? 

297. 

Why  a 
Congress  ? 


9. 


Is  this  wise  ? 


Of  what  is 
the  house  of 
representa- 
tives ? 


298. 


Why  by  the 
people  of 
the  several 
States  ? 


What 

people  ? 


Article  I. 

Sec.  I. — All  legislative  powers  herein  granted,  shall 
be  vested  in  a Congress  of  the  United  States,  which 
shall  consist  of  a senate  and  house  of  representa- 
tives. 

14.  Legislative  power  is  the  law-making  power  or  supreme 
power,  wherein,  according  to  Blackstone,  resides  the  sovereignty, 
or  at  least  the  exercise  of  fcvereignty,  of  the  State.  1 Bl.  Com. 
49. 

15.  Congress. — An  assembly  of  persons ; an  assembly  of  en- 
voys, commissioners,  or  deputies.  An  assembly  of  represen- 
tatives from  different  governments  to  concert  measures  for  their 
common  good,  or  to  adjust  their  mutual  concerns.-  Webster. 
Here  it  is  the  National  Legislature.  1 Kent’s  Com.  221 ; Burrill’s 
Law  Die.,  Congress. 

The  word  was  doubtless  transferred  from  the  Articles  of  Con- 
federation, where  each  State  expressly  retains  its  sovereignty,  free- 
dom, and  independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled.  The  government  was  only 
“ a firm  league  of  friendship."’  Art.  2,  ante , p.  9. 

The  wisdom  of  this  division  of  legislative  power  into  two 
branches  has  been  vindicated  by  our  wisest  statesmen.  Story’s 
Const,  chap.  viii.  § 545-570 : 1 Kent’s  Com.  208-210;  The  Federal- 
ist, No.  22 ; De  Lolme  on  the  Constitution  of  England,  B.  2,  chap, 
iii. ; Randolph’s  Letter,  3 Amer.  Museum,  62,  66;  Adams’s  De- 
fense of  American  Constitutions,  105,  106,  121,  284,  286;  2 Pitk. 
Hist.  294,  305,  316;  Paley’s  Moral  Philosophy,  b.  6,  ch.  vii. ; 
Wilson’s  Law  Lect.  393-405.  H 

In  regular  logical  consecutive  order  the  Senate  should  be  first 
defined,  but  it  is  not.  [Ed.] 

Sec.  II. — [1.]  The  house  of  representatives  shall  be 
composed  of  members  chosen  every  second  year  by 
the  people  of  the  several  States ; and  the  electors  in 
each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State 
legislature. 

10.  The  House  simply  means  the  popular  branch.  By  the 
people  is  meant  the  wise  principle  of  direct  representation  and 
responsibility.  (The  Federalist,  Nos.  40-52 ; 1 Wilson’s  Law 
Lect.  429—433 ; 2 Id.  124-128;  1 Tucker’s  Blacks.  Com.,  App. 
28;  Paley’s  Moral  Philosophy,  b.  6,  ch.  6);  Story’s  Const.  § 571- 
576:  Curtis’s  Hist,  of  the  Const.  148. 

“The  People”  are  that  portion  of  the  citizens  of  the  United 


Cl.  1.] 


QUALIFICATIONS,  16. 


59 


States  who  are  the  resident  inhabitants  of  particular  States.  Aliens  299. 
are  excluded.  Farrar,  § 24-38.  This  accords  with  Mr.  Calhoun’s  24-38. 
speech  upon  the  admission  of  Michigan.  But  it  is  not  sustained 
by  practice,  and  was  denied  in  the  speeches  by  Mr.  Stephens  and 
others  on  the  admission  of  Minnesota.  Properly,  “ the  people  ” 6,  21-25, ,22a 
here  really  mean-  the  qualified  voters.  But  here  Mr.  Farrar  con- 
tends that  Congress  may  prescribe  the  qualifications.  Farrar,  § 1 24 
-141.  Mr.  Farrar  admits  the  practice  to  be  contrary  to  his  theory, 
but  insists  that  an  alien  is  not  an  inhabitant.  (College  v.  Gove, 

5 Pick.  373);  Farrar,  § 133.  It  will  be  observed  that  the  elec- Who  are 
tions  are  by  “the  people  of  the  several  States.”  But  what electors * 
people  shall  vote?  They  are  the  “electors  of  the  most  numer- 
ous branch  of  the  State  legislature.”  There  was  then  very 
little  uniformity  as  to  these  voters.  2.  Elliot’s  Debates,  38 ; 

2 Wilson’s  Law  Lecture,  128-131;  Federalist,  No.  52  to  54; 

Story’s  Const,  chap*  9,  § 570,  et  seq.  2 Curtis’s  Hist,  of  the 
Const.  1 98.  Time  has  only  lessened  the  uniformity,  for  many  of 
the  States  allow  unnaturalized  aliens  to  vote.  See  the  constitu-  Is  a negro 
tions  of  Illinois,  Indiana,  and  Michigan,  and  the  congressional one  °*  ?the 
debate  upon  suffrage,  1865-66.  In  the  Dred  Scott  case  the  sub- IJeop  e 
ject  was  fully  discussed,  and  it  was  said  that,  while  congress 
possessed  the  exclusive  power  of  naturalization,  a negro  could  220. 
not  be  made  a citizen  of  the  United  States;  that  a State  could 
confer  the  right  of  suffrage  on  an  alien,  or  any  one  else,  but  it  May  he  be  a 
could  not  thereby  make  them  citizens  of  the  United  States.  voter? 

Scott  v.  Sandford,  19  How.  404-414. 


The  Constitution  of  the  Confederate  States,  which  showed  the  What  of  the 
Southern  mind  as  to  proper  amendments,  interpolated  the  words  constftu-^ 
“ shall  be  citizens  of  the  Confederate  States.”  And  to  the  section  was  ti0n? 
added  a clause,  “ but  no  person  of  foreign  birth , not  a citizen  of  the 
Confederate  States , shall  be  allowed  to  vote  for  any  officer,  civil  or  po- 
litical, State  or  federal .”  Paschal’s  Annotated  Digest,  p.  86. 

This  proved  the  willingness  to  make  suffrage  a matter  of  na-  6,  220. 
tional  legislation,  and  the  determination  to  avoid  participation  in 
the  elections  by  persons  who  were  not  national  citizens. 

Mr.  Farrar  has  only  followed  these  extreme  views.  The  ques-  What  is  the 
tion  of  limited  suffrage,  and  the  motives  which  influenced  the  reason  of  the 
Convention  to  leave  the  power  with  the  States,  will  be  found  in  the  rule  ? 
following  authorities:  1 Blacks.  Com.  171,  172,  463,464;  Montes- 
quieu’s Spirit  of  Laws,  b.  11,  chap.  vi. ; Paley’s  Moral  Philosophy, 
b.  11,  chap.  vi. ; Locke  on  Government,  p.  2,  §§  149,  227 ; Adams’s 
Amer.  Const.,  letter  vi.  pp.  263,  440  ; Jefferson’s  Notes  on  Virginia, 

191;  Story’s.  Const.  576-587 ; Curtis’s  Hist,  of  the  Const.  187, 

194,  200. 


Qualifications. — The  word  as  here  used  is  hardly  within  any  what  means 
of  the  ordinary  significations.  Webster’s  Die.,  Qualification.  qualifica- 
There  was  this  logic  and  consistency  in  the  rule  adopted:  tlons? 

1.  Those  who  indirectly  elect  the  senators  and  the  president  and  19,  85,  46 
vice-president,  directly  elect  the  representatives  in  Congress.  16h 

2.  The  National  Constitution  could  not  well  fix  a rule  as  to  voters 
for  Congress  without  also  extending  it  to  all  elections.  3.  Any 


60 


QUALIFICATIONS,  16,  17.  [Art,.  I.,  Sec.  2., 


28,  233. 


"What  are 
the  qualifica- 
tions as  now 
defined  by 
the  States? 
Alabama  ? 


299. 


Arkansas  ? 


California  ? 


Connecti- 

cut? 


Delaware  ? 


Florida? 


Georgia  ? 


Illinois  ? 


absolute  abuse  of  the  rights  of  electors,  such  as  transferring  the 
choice  to  other  magistrates,  or  to  a particular  profession,  would  be 
subject  to  the  guaranty  of  a republican  form  of  government. 

17.  The  following  are  the  “qualifications”  forelectors  in  the 
different  States  at  the  present  time : In  all  the  States,  males  twenty- 
one  years  of  age. 

Alabama. — White  citizens  of  the  United  States ; residence  in  the 
State^one  year,  and  in  the  county  three  months.  Soldiers,  seamen, 
and  marines  of  the  United  States,  and  persons  infamous  for  crime 
excluded.  Const,  of  30th  Sept.,  1865.  Hough,  New  York  Con- 
vention Manual,  82.  See  new  Constitution  of  1867. 

Arkansas. — White  citizens  of  the  United  States ; six  months 
residence ; soldiers,  seamen,  and  marines  in  time  of  peace  excluded. 
Constitution  of  1864-5.  Id.  85. 

California. — White  citizens  of  the  United  States  and  of  Mexico, 
who  shall  have  elected  to  become  citizens  of  the  United  States 
under  the  treaty  of  the  30th  May,  1848.  Indians  may  be  qualified 
by  two-thirds  of  the  legislature. — Constitution  of  13th  October, 
1849.  Id.  96,  97. 

Connecticut. — Every  white  male  citizen  of  the  United  States; 
one  year’s  residence ; freehold  of  the  yearly  value  of  six  dollars ; 
good  moral  character ; able  to  read  any  article  of  the  Constitution, 
or  any  section  of  the  statutes  of  the  State.  Amendments  of 
October,  1845,  and  October,  1855.  Id.  115. 

Delaware. — Free  white  citizens  of  the  United  States ; one  year’s 
residence ; having  paid  a county  tax  within  two  years,  which  had 
been  assessed  at  least  six  months  before  the  election ; no  tax  if 
between  twenty-one  and  twenty -two  years  old ; no  person  in  the 
military,  naval,  or  marine  service  of  the  United  States  shall  be  con- 
sidered as  acquiring  a residence  in  this  State  by  being  stationed  in 
any  garrison,  barrack,  or  military  or  naval  place  or  station  within 
this  State  ; and  no  idiot  or  insaine  person,  or  pauper  or  person  con- 
victed of  any  crime  deemed  by  law  felony,  shall  enjoy  the  right  of  an 
elector.  Constitution  of  2d  December,  1831.  Id.  121. 

Florida. — Citizens  of  the  United  States,  with  one  year’s  resi- 
dence. Officers,  soldiers,  and  marines  of  the  army  and  navy  do 
not  thereby  acquire  residence.  The  legislature  may  exclude  per- 
sons convicted  of  infamous  crimes.  Constitution  of  7th  November, 
1865.  Id.  135. 

Georgia. — Free  white  male  citizens  of  this  State  and  of  the  Uni- 
ted States ; have  paid  all  taxes  required  of  them,  and  which  they 
have  had  an  opportunity  of  paying,  for  one  year  preceding  the  elec- 
tion ; two  years’  residence  in  the  State  and  one  year  in  the  county. 
Constitution  of  7th  Nov.,  1865.  Id.  149. 

Illinois. — White  male  citizens.  Residence  one  year ; inhabitants 
of  one  year’s  residence  at  the  adoption  of  the  Constitution.  Consti- 
tution of  31st  August,  1847.  Id.  169. 


01.  1.] 


QUALIFICATIONS,  17. 


61 


Indiana. — White  male  citizens  of  the  United  States ; six  mouths  Indiana  ? 
residence ; if  of  foreign  birth,  one  year’s  residence  in  the  United 
States  and  six  months  in  this  State ; and  shall  have  declared  his  in- 
tention to  become  a citizen  of  the  United  States,  conformably  to  the 
laws  on  the  subject  of  naturalization.  No  soldier,  seaman,  or  ma- 
rine of  the  United  States,  or  of  their  allies,  shall  be  deemed  to  have 
acquired  a residence  in  the  State  in  consequence  of  having  been 
within  the  same;  nor  shall  any  such  soldier,  seaman,  or  marine 
have  the  right  to  vote.  No  negro  or  mulatto  shall  have  the  right 
to  vote.  Const,  of  10th  Feb.,  1865.  Id.  171. 

Iowa. — White  male  citizens  of  the  United  States;  six  months  Iowa? 
residence  in  the  State  and  sixty  days  in  the  county.  Persons  in 
the  military,  naval,  or  marine  service  of  the  United  States ; idiots, 
insane,  or  convicted  of  infamous  crimes  excluded.  Const,  of  the  5th 
March,  1857.  Id.  184. 

Kansas. — Citizens  of  the  United  States;  or  persons  of  foreign  Kansas ? 
birth  who  shall  have  declared  their  intentions  to  become  citizens, 
conformably  to  the  laws  of  the  United  States  on  the  subject  of  natu- 
ralization ; six  months  residence  in  the  State,  and  thirty  days  in  the 
township.  No  person  under  guardianship,  non  compos  mentis , or 
insane,  or  any  person  convicted  of  treason  or  felony,  unless  restored 
to  civil  rights,  nor  any  soldier,  seaman,  or  marine  shall  be  allowed 
to  vote.  Const,  of  29th  July,  1859.  Id.  202. 

Kentuck^ — Free  white  male  citizens;  residence  two  years  in  Kentucky  ? 
the  State,  or  one  year  in  the  county,  town,  or  city  in  which  he 
offers  to  vote,  and  sixty  days  in  the  precinct.  Const,  of  11th  June, 

1850.  Id.  210. 

Louisiana. — White  male  citizens  of  the  United  States ; residence  Louisiana? 
in  the  State  twelve  months,  and  three  months  in  the  parish.  Const, 
of  Sept.,  1854.  Id.  227. 

Maine. — Male  citizens  of  the  United  States,  excepting  pau-  Maine  ? 
pers,  persons  under  guardianship,  and  Indians  not  taxed;  estab- 
lished residence  three  months.  Persons  in  the  military,  naval,  or 
marine  service  of  the  United  States  or  this  State,  and  students  not 
deemed  to  have  acquired  residence.  Const,  of  29th  Oct..  1819. 

Id.  240. 

Maryland. — White  male  citizens  of  the  United  States ; resi-  Maryland  ? 
dence  one  year  in  the  State  and  six  months  in  the  county.  Const, 
of  1867  (and  so  of  1864).  Id.  250. 

Massachusetts. — Male  citizens  (excepting  persons  or  paupers  Massachu- 
under  guardianship) ; residence  in  the  State  one  year ; in  the  town  setts  ? 
or  district  six  months ; having  paid  all  required  taxes.  Const,  of 
1780,  as  amended.  Id.  294.  Amendment,  Art.  XX.  No  person 
shall  have  the  right  to  vote,  or  be  eligible  to  office,  under  this 
Commonwealth,  who  shall  not  be  able  to  read  the  Constitution  in 
the  English  language  and  write  his  name ; Provided , however , that 
the  provisions  of  this  amendment  shall  not  apply  to  any  person 
prevented  by  physical  disability  from  complying  with  its  requisi- 


63 


QUALIFICATIONS,  17. 


[Art.  I.,  Sec,  2., 


Michigan? 


Minnesota  ? 


Mississippi  ? 


Missouri  ? 


143. 


Nebraska  ? 


Nevada'  ? 


tions,  nor  to  any  person  who  now  has  the  right  to  vote,  nor  to  any 
person  who  shall  be  sixty  years  of  age  or  upward  at  the  time  this 
amendment  takes  effect.  Id.  298.  By  amendment  XXVI.,  of  1850, 
persons  of  foreign  birth  not  allowed  to  vote  until  two  years  after 
naturalization.  Id.  300. 

Michigan. — Every  white  male  citizen ; every  white  male  inhabi- 
tant residing  in  the  State  on  the  24th  day  of  June,  1835;  every 
white  male  inhabitant  on  the  first  day  of  January,  1850,  who  has 
declared  his  intention  to  become  a citizen  of  the  United  States,  pur- 
suant to  the  laws  thereof,  six  months  preceding  an  election,  or  who 
has  resided  in  this  State  two  years  and  six  months,  and  declared 
his  intention  as  aforesaid ; and  every  civilized  male  inhabitant  of 
Indian  descent,  a native  of  the  United  States  and  not  a member  of  any 
Indian  tribe,  shall  be  an  elector  and  entitled  to  vote.  Residence 
three  months  in  the  State.  Const,  of  1850.  Id.  307.  Persons  ab- 
sent in  the  actual  military  service  of  the  United  States  not  disquali- 
fied. Presence  in  such  service  is  not  residence.  Id.  308. 

I 

Minnesota. — 1.  White  citizens  of  the  United  States;  2.  White 
persons  of  foreign  birth  who  shall  have  declared  their  intention  to 
become  citizens ; 3.  Persons  mixed  with  white  and  Indian  blood, 
who  have  adopted  the  customs  and  habits  of  civilization ; 4.  Per- 
sons of  Indian  blood  residing  in  this  State  who  have  adopted  the 
language,  customs,  and  habits  of  civilization,  after  an  examination 
before  any  district  court  of  the  State,  &c.,  and  pronounced  capable 
of  citizenship;  residence  one  year  in  the  United  States  and  four 
months  in  the  State  before  the  election.  Const,  of  1857-8.  Id.  325. 

Mississippi. — Free  white  male  citizens  of  the  United  States ; one 
year’s  residence  in  the  State,  four  months  in  the  county  or  town. 
Const.  1832  as  amended  in  1865.  Id.  336. 

Missouri. — White  male  citizens  of  the  United  States,  and  every 
white  male  person  of  foreign  birth  who  may  have  declared  his 
intention  to  become  a citizen  of  the  United  States,  according  to  law, 
not  less  than  one  year  nor  more  than  five  years  before  he  offers  to 
vote ; residence  one  year  in  the  State  and  sixty  days  in  the  county, 
city,  or  town.  The  disqualification  of  all  who  participated  in  or 
sympathized  with  the  rebellion  is  most  searching  and  comprehen- 
sive. After  1876,  new  voters  must  be  able  to  read  and  write  or  be 
disabled  therefrom  by  physical  disability.  Const,  of  1865.  348-351. 

Nebraska. — 1.  White  male  citizens  of  the  United  States; 
2.  White  persons  of  foreign  birth  who  shall  have  declared  their  in- 
tention to  become  citizens,  conformably  to  the  laws  of  the  United 
States  on  the  subject  of  naturalization.  Const,  of  1867.  Id.  371. 

By  the  act  of  admission  agreed  to  by  the  legislature,  the  right  is 
not  restricted  to  whites. 

This  State  was  admitted  March,  1867,  as  the  37th  State. 

Nevada. — Every  white  male  citizen  of  the  United  States;  resi- 
dence six  months  in  the  State  and  thirty  days  in  the  county;  per- 
sons convicted  of  treason  or  felony  and  not  restored  to  civil  rights, 


a.  i.] 


QUALIFICATIONS,  17. 


63 


or  who,  after  arriving  at  the  age  of  eighteen  years,  shall  have  volun- 
tarily borne  arms  against  the  United  States,  or  held  civil  or  military 
office  under  the  so-called  Confederate  States,  unless  an  amnesty  be 
granted  to  such  person  by  the  Federal  Government,  excluded ; also 
idiots  and  insane  persons.  Const,  of  1864.  Id.  380,  381. 

New  Hampshire. — Every  male  inhabitant  of  each  town,  and  New  Hamp- 
parish  with  town  privileges,  and  places  unincorporated,  excepting  stlire  ? 
paupers,  and  persons  excused  from  paying  taxes  at  their  own  re- 
quest. Const,  of  1792.  Id.  403. 

New  Jersey. — White  male  citizens  of  the  United  States;  resi- New  Jersey? 
dence  one  year  in  the  State  and  five  months  in  the  county ; officers, 
soldiers,  and  marines  of  the  United  States  do  not  acquire  residence ; 
paupers,  idiots,  and  insane  persons  and  persons  infamous  excluded. 

Const,  of  1844.  Id.  413. 

New  York. — Male  citizens  who  shall  have  been  such  ten  days:  New  York? 
residence  in  the  State  one  year,  and  in  the  county  four  months. 

Men  of  color,  unless  citizens  of  this  State  for  three  years,  and  for 
one  year  seized  of  a freehold  of  the  value  of  two  hundred  and 
fifty  dollars,  on  which  they  shall  have  paid  a tax,  excluded.  Ab- 
sence in  military  service  does  not  exclude.  Const,  of  1846,- as 
amended  in  1863.  Id.  49,  50. 

North  Carolina. — Every  free  white  man — being  a native  or  North 
naturalized  citizen  of  the  United  States,  and  who  has  been  an  in-  Carolina  ? 
habitant  of  this  State  for  twelve  months  immediately  preceding 
the  day  of  election,  and  shall  have  paid  all  taxes.  Amendment  of 
11th  December,  1856,  ratified  10th  September,  1857.  Id.  431. 

Ohio. — Free  white  male  citizens  of  the  United  States;  residence  Ohio? 
one  year  in  the  State.  Soldiers,  marines,  idiots,  and  insane  per- 
sons excluded.  Mulattoes  in  a certain  degree  are  excluded. 

Const,  of  1851.  Id.  438. 

Oregon. — White  male  citizens  of  the  United  States,  and  white  Oregon  ? 
males  of  foreign  birth  who  shall  have  declared  their  intention;  res- 
idence one  year  as  to  foreigners  and  six  months  as  to  citizens. 

Sailors,  soldiers,  idiots,  insane,  Chinamen,  and  negroes  excluded. 

Const,  of  1857.  Id.  449. 

Pennsylvania. — Freemen ; residence  one  year ; must  have  paid  Pennsyl- 
taxes  within  two  years;  white  freemen,  citizens  of  the  United vania? 
States,  between  twenty-one  and  twenty- two  years  of  age,  not 
obliged  to  have  paid  taxes ; if  absent  in  the  military  service  of  the 
United  States,  electors  not  to  lose  the  right  to  vote.  Const,  of 
1838,  as  amended  in  1857  and  1 864.  Id.  472. 

Rhode  Island. — Male  citizens  of  the  United  States ; residence  Rhode 
one  year ; real  estate  in  the  State  of  the  value  of  one  hundred  and  Isl^d  ? 
thirty-four  dollars,  or  which  brings  a clear  rental  of  seven  dollars 
per  annum.  Soldiers,  marines,  &c.,  do  not  thereby  acquire  a resi- 
dence; paupers,  lunatics,  or  persons  non  compos  mentis , and  Narra- 
ganset  Indians,  specially  excluded.  Const,  of  1842.  Id.  474,  475. 

Soldiers  absent  in  actpal  military  service  allowed  to  vote.  Id.  481. 


64 


South 
Carolina  ? 


Tennessee  ? 


Texas? 


Vermont  ? 


Virginia  ? 


West 
Virginia  ? 


Wisconsin  ? 


Is  there  any 
uniformity  ? 


QUALIFICATIONS,  17.  [Art.  I.,  Sec.  2., 

South  Carolina. — Free  white  men ; residence  two  years  in  the 
State  and  six  months  in  the  district ; immigrants  from  Europe  with 
like  residence  who  have  declared  their  intention  to  be  naturalized ; 
paupers,  soldiers,  and  marines  specially  excluded.  Const,  of  1865. 
Id.  486. 

Tennessee. — White  men,  citizens  of  the  United  States  (certain 
blacks  included  under  previous  constitution) ; residence  one  year. 
Const,  of  1839.  Id.  495. 

By  the  amendment  of  1866,  § 9,  the  qualifications  of  voters  and 
the  limitation  of  the  elective  franchise  may  be  determined  by  the 
General  Assembly  which  shall  first  assemble  undef  the  amended 
constitution.  Id.  504.  The  General  Assembly  extended  the  right 
of  suffrage  to  the  blacks,  and  excluded  certain  classes  of  those 
engaged  in  the  rebellion. 

Texas. — Every  free  male  person,  who  shall  be  a citizen  of  the 
United  States  (Indians  not  taxed,  Africans,  and  descendants  of 
Africans  excepted) ; residence  one  year  in  the  State  and  six  months 
in  the  county.  Const,  of  1866.  Id.  507.  The  words,  “ or  who  is,  at 
the  time  of  the  adoption  of  the  Constitution  by  the  Congress  of 
the  United  States,  a citizen  of  Texas,”  were  in  the  Constitution 
of  1845,  but  were  omitted  from  the  revision.  Paschal’s  Anno- 
tated Digest,  51,  932. 

Vermont. — Freemen  of  the  State,  who  are  natural  born  citizens 
of  Vermont  or  some  one  of  the  United  States,  or  naturalized. 
Const,  of  1793  as  amended.  New  York  Convention  Manual,  by 
Hough,  523,  529. 

Virginia. — White  male  citizens  of  the  Commonwealth;  resi- 
dence one  year  in  the  State  and  six  months  in  the  county.  Must 
have  paid  the  previous  year’s  assessment  of  taxes.  Const,  of  1864. 
Id.  533,  545. 

West  Virginia. — White  male  citizens  of  the  State;  residence 
one  year.  Paupers,  convicts  of  treason,  felony,  or  bribery  in  elec- 
tion, persons  who  have  given  aid  to  the  rebellion,  unless  he  has 
volunteered  into  the  military  and  naval  service  of  the  United 
States  and  been  honorably  discharged  therefrom,  excluded.  Const. 
1861-3,  as  amended  24th  May,  1866.  Id.  547,  548. 

Wisconsin. — 1.  Citizens  of  the  United  States.  2.  Persons  of 
foreign  birth  who  shall  have  declared  their  intention  to  become 
citizens,  conformably  to  the  laws  of  the  United  States  on  the  sub- 
ject of  naturalization.  (The  word  44  white  ” was  stricken  out  by 
amendment.) 

3.  Persons  of  Indian  blood  who  have  once  been  declared  by  law 
of  Congress  to  be  citizens  of  the  United  States,  any  subsequent 
law  of  Congress  to  the  contrary  notwithstanding. 

4.  Civilized  persons  of  Indian  descent,  not  members  of  any  tribe. 
Const,  of  1848.  Id.  561,  562. 

It  will  thus  be  seen  that  the  only  uniformity  is,  that  electors  in 
all  the  States  require  the  qualitication  of  being  males  over  twenty - 


01.  1.] 


QUALIFICATIONS— CITIZEN,  17,  18. 


65 


one  years  of  age,  and  of  residence  longer  or  shorter.  The  general  A?e- 
rule  is,  “ white  citizens  of  the  United  States but  negroes  or  persons  5^8, 
of  African  descent  are  electors  in  all  New  England  except  Con- 
necticut ; in  Nebraska,  Tennessee,  Wisconsin,  and  by  construction, 
perhaps,  in  other  States;  persons  in  the  military  and  naval  service 
are  excluded  in  some  States,  and  idiots,  lunatics,  and  persons  non 
compos  mentis  in  others. 

In  Oregon,  Chinamen  are  excluded.  In  all  the  late  fifteen  slave 
States,  except  Tennessee,  persons  of  African  descent  are  excluded. 

In  Indiana,  Michigan,  Wisconsin,  Oregon,  and  South  Carolina, 
unnaturalized  persons  of  longer  or  shorter  residence  who  have 
declared  their  intention  are  voters ; while  in  Massachusetts  the 
naturalized  are  excluded  until  two  years  after  naturalization.  In  a 
few  of  the  northwestern  States  Indians  are  allowed  to  vote.  The 
qualification  of  freeholder  or  tax-payer  is  required  in  a few  States ; 
and  the  benefit  of  clergy  or  the  power  to  read  and.  write  is  required 
in  two  States.  Disqualification  for  infamous  offenses  exists  in  a 
few  States.  So  that  in  fact  there  is  no  uniformity  except  as  to  sex  What  is  the 
and  age,  and  less  than  there  was  at  the  formation  of  the  federal  only  ,uni- 
Constitution.  The  qualifications  in  no  two  States  were  exactly  alike. lorml  y ’ 
Story’s  Const.,  § 637  ; The  Federalist,  No.  54.  As  to  the  free  per- 
sons of  African  descent,  while  they  were  only  half  a million,  the  24. 
majority  of  whom  resided  in  the  slave  States,  “ de  minimis  non  W hy  the  ne- 
curat  lex ,”  seems  to  have  been  the  maxim.  But  now  that  they  are  a 

one-eighth  of  the  whole  population,  and  constitute  a majority  of  ruie? 

“ citizens  of  the  United  States  ” in  several  States,  whatever  may 
have  been  our  habits  of  thought,  the  statesman  and  the  philosopher  220. 
is  obliged  to  face  the  question,  and  to  consider  the  propriety  of  a** 
uniform  rule  for  electors. 


18.  But  citizenship  of  the  United  States,  or  of  a State,  does  not  Is  citizen  - 
of  itself  give  the  right  to  vote ; nor,  e converso , does  the  want  of  it  shh> 
prevent  a State  from  conferring  the  right  of  suffrage.  Scott  v.  su  rage 
Sandford,  19  How.  422. 


The  right  of  suffrage  is  the  right  to  choose  officers  of  the  govern- 
ment ; and  it  does  not  carry  along  the  right  of  citizenship.  Bates 
on  Citizenship,  4,  5.  Our  laws  make  no  provision  for  the  loss  or 
deprivation  of  citizenship.  Id. 

The  word  citizen  is  not  mentioned  in  this  clause,  and  its  idea 
is  excluded  in  the  qualifications  for  suffrage  in  all  the  State 
constitutions.  Id.  5,  6.  10  Op.  388. 

American  citizenship  does  not  necessarily  depend  upon  nor 
coexist  with  the  legal  capacity  to  hold  office  or  the  right  of  suffrage, 
either  or  both  of  them. 

No  person  in  the  United  States  did  ever  exercise  the  right  of 
suffrage  in  virtue  of  the  naked,  unassisted  fact  of  citizenship.  Id. 

There  is  a distinction  between  political  rights  and  political  powers. 
The  former  belong  to  all  citizens  alike,  and  cohere  in  the  very 
name  and  nature  of  citizenship.  The  latter  (voting  and  holding 
office)  does  not  belong  to  all  citizens  alike,  nor  to  any  citizen  merely 
in  virtue  of  citizenship.  His  power  always  depends  upon  extra- 
neous facts  and  superadded  qualifications;  which  facts  and 


What  is  the 
right  of 
suffrage  ? 

30. 

Does  this 
section  ex- 
clude the 
idea  of  citi 
zen  ? 

Does  citi- 
zenship de- 
pend upon 
suffrage  ? 

93. 

What  is  th* 
distinction 
between 
political 
rights  and 
powers  ? 

19, 35,63,169, 


66 


PERSON,  19,  20. 


[Art.  I.,  Sec.  2., 


170. 


What  are 
the  qualifi- 
cations of 
representa- 
tives. 


What 
persons  ? 

46. 

Representa- 
tive ? 

Citizen  of 
the  United 
S tates  ? 


220 


Who  are 
citizens  ? 


6, 17,  24,  35, 
44,220. 


Who  is  an 
inhabitant 
when 
elected  ? 

22, 23,  44,  46. 


qualifications  are  common  to  both  citizens  and  aliens.  Bates  on 
Citizenship. 

[2.]  N o person  shall  be  a representative  who  shall 
not  have  attained  to  the  age  of  twenty-five  years,  and 
been  seven  years  a citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

19.  “ Person  ” is  here  undefined,  but  it  is  supposed  to  mean 
males.  A representative  is  one  chosen  by  the  qualified  voters,  at 
the  time  prescribed  by  the  States  or  Congress,  in  the  manner  pre- 
scribed by  law,  and  having  the  qualifications  of  age,  citizenship, 
and  inhabitancy  or  domiciliation. 

The  Constitution  having  fixed  the  qualifications  of  members,  no 
additional  qualifications  can  rightfully  be  required  by  the  States. 
Barney  v.  McCreery,  Cl.  & Hall,  176:  Story’s  Const.  § 624-629; 
Federalist,  No.  52.  But  if  a country  be  conquered,  purchased,  or 
annexed,  and  the  inhabitants  thus  incorporated  by  such  revolutions, 
as  the  purchase  of  Louisiana  and  Florida,  the  annexation  of  Texas, 
and  the  conquest  and  cession  of  California,  the  inhabitants  become 
national  citizens,  and  are  eligible  to  office,  not  as  naturalized  people, 
according  to  uniform  rule,  but  as  denizens  of  the  acquired  soil, 
whether  native  born  or  naturalized.  It  was  so  held  in  the  case  of 
Mr.  Levy  [Yulee],  of  Florida,  upon  a contest  in  the  House  of 
Bepresentatives  of  the  United  States.  Mr.  Clark  of  Louisiana, 
and  Senator  Porter,  of  that  State,  as  well  as  all  the  European 
inhabitants  of  Louisiana,  Florida,  Texas,  California,  New  Mexico, 
Arizona,  and  Walrussia,  and  all  born  upon  those  Territories,  owed 
their  naturalization  to  the  law  of  conquest,  purchase,  or  annexa- 
tion. Native  inhabitants  have  been  admitted  as  delegates  from 
New  Mexico,  under  the  general  description  of  citizenship. 

The  object  was  to  exclude  aliens.  Story’s  Const.  § 612-629. 
See  Farrar,  § 256-281. 

Yet  “ person”  and  “citizen  ” in  this  sentence  cannot  have  the 
same  comprehensive  meaning  of  “people”  or  “electors”  in  the 
preamble,  and  in  Art.  1,  § 1,  clause  1.  From  necessity  it  must 
have  a limitation  beyond  what  is  defined  in  the  clause. 

20.  An  inhabitant  of  a state  is  one  who  is  bond  fide  “ a 
member  of  the  State,  subject  to  all  the  requisitions  of  its  laws,  and 
entitled  to  all  the  privileges  and  advantages  which  they  confer.” 
Bailey’s  Case,  Cl.  & Hall,  411.  A person  residing  in  the  District  of 
Columbia,  though  in  the  employment  of  the  general  government,  is 
not  an  inhabitant  of  a State,  so  as  to  be  eligible  to  a seat  in  congress. 
Id.  But  a citizen  of  the  United  States,  residing  as  a public  minister 
at  a foreign  court,  does  not  lose  his  character  of  inhabitant  of  that 
State  of  which  he  is  a citizen,  so  as  to  be  disqualified  for  election 
to  congress.  Id. : Forsyth’s  Case,  Id.  497.  See  Ramsay  v.  Smith, 
CL  & Hall,  123.  Key’s  Case,  Cl.  & Hall,  224. 


Cl.  2,  8.] 


REPRESENTATIVES,  20-22. 


67 


[3.]  Representatives  and  direct  taxes  shall  be  appor- mat  is  the 
tioned  among  the  several  States  which  may  be  included  mePntrtofnre- 
within  this  Union,  according  to  their  respective  num-  tives  and 
bers ; which  shall  be  determined  by  adding  to  the dllccttaxes? 
whole  number  of  free  persons,  including  those  bound 
to  service  for  a term  of  years,  and  excluding  Indians 
not  taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after  the  Census? 
first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such 
manner  as  they  shall  by  law  direct.  The  number  of  Number  of 

^ _ . representa- 

representatives  shall  not  exceed  one  for  every  thirty  tives? 

thousand,  but  each  State  shall  have  at  least  one  repre- 
sentative ; and,  until  such  enumeration  shall  be  made, 
the  State  of  Ne w Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Provi- 
dence Plantations  one,  Connecticut  five,  New  York 
six,  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten,  North  Carolina  five, 

South  Carolina  five,  and  Georgia  three. 


21.  Representatives. — As  to  the  reasons  for  the  rule,  see  Give  facts  of 
Story’s  Const.  § 630-689.  Notes  to  third  edition ; 1 EUiftt’s  Represent*. 
Debates,  212,  213;  2 Pitk.  Hist.  233-248.  numbers. 

As  the  population  has  increased,  the  ratio,  or  “numbers”  neces- 
sary to  elect  a representative,  has  been  increased,  so  as  not  to  make 
the  body  too  large.  They  have  stood  through  each  decade  as 
follows  : — 1790 — 43,000.  1 St.  253;  1800—33,000.  2 St.  128;  1810 
—35,000.  Act  of  21  Dec.,  *1811,  ch.  9;  1820—40,000.  3 St.  651; 

1830 — 47,700.  4 St.  516;  1840—70,000.  5 St.  491;  1850—93,420. 

Rep.  population  divided  by  233,  9 St.  432,  433;  1860 — 126,823.  12 
St.  353;  2 Brightly’s  Dig.  84.  Obtained  by  dividing  by  241,  giving  168. 
to  Ohio,  Kentucky,  Illinois,  Iowa,  Minnesota,  Vermont,  and  Rhode 
Island,  each  an  additional  member. 


22.  Direct  Taxes,  perhaps,  mean,  in  the  stricter  sense,  a rate  What  are 
imposed  by  government  upon  individuals  (polls),  lands,  houses,  direct  taxes? 
horses,  cattle,  possessions,  and  occupations,  as  distinguished  from 
customs,  duties,  imposts,  and  excises.  Webster.  See  Burrill’s 
Law  Die.,  Tax. 

In  the  case  of  Hylton  v.  The  United  States  the  question  was  72-77, 144. 
much  discussed;  but  no  authoritative  conclusion  seemed  to  be 


68 


DIRECT  TAXES,  22,  23.  [Art.  I,  Sec.  2., 


163,164.  settled.  The  general  impression  seemed  to  be,  that  a tax  on  real 
estate,  such  as  the  war  tax  of  1862,  might  be  intended. 

See  the  subject  discussed.  Story’s  Const.  § 955-957. 

Only  four  direct  taxes  have  been  laid:  In  1798,  1813,  1815, 

1861.  Story’s  Const.  § 642;  2.  Brightly’s  Dig.  407  ; Internal  Rev- 
enue pamphlets  everywhere.  The  Internal  Revenue  tax  is  sup- 
posed to  come  under  a different  classification. 

On  per-  A tax  on  carriages  is  not  a direct  tax.  There  are  three  kinds 
sonals  ? 0f  taxes  : duties,  imposts,  and  excises,  which  are  to  be  laid  by  the 
rule  of  uniformity ; and  capitation  and  direct  taxes  on  land,  which 
TV  hat  by  are  to  be  laid  by  the  rule  of  apportionment.  Hylton  v.  the  United 
andwhat^  States,  3 Dallas,  171.  License  Tax  Cases,  5 Wall.  477.  The  better 
apportion-  ^ opinion  seemed  to  be,  that  the  direct  taxes  were  a capitation  or 

ment  ? poll  tax,  or  a tax  on  land.  Hylton  v.  United  States,  3 Dali.  171; 

1 Kent’s  Com.  255,  256.  This  does  not  preclude  the  right  to 

144.  impose  a direct  tax  in  the  District  of  Columbia  (and  the  Terri- 

tories) in  proportion  to  the  census  directed  to  be  taken  by  the 
Constitution.  Loughborough  v.  Blake,  5 Wh.  317  ; 1 Kent’s  Com. 
256. 


How  appor-  23.  APPORTIONED. — Proportion  and  ratio  are  equivalent  words  ; 
tioned?  ^nd  ^ definition  of  proportion  among  numbers , that  they 

have  a ratio  common  to  all — a common  divisor.  (Jefferson  in  1792.) 
Story’s  Const.  3d  Ed.  § 683,  note  2 ; which  note  also  contains  Mr. 
Webster’s  report  on  fractional  numbers,  in  1832.  These  two  opposite 
views  exhaust  the  whole  argument.  See  Farrar,  § 131-141.  In 
these  he  discusses  “free  persons,”  and  “all  other  persons.”  The 
17, 18,  practice  has  been  to  exclude  from  the  “ numbers  ” none  except 

144,220.  two-fifths  of  the  slaves,  thus  counting  the  three-fifths  of  the  “all 

other  persons.”  That  is,  five  slaves  were  only  equal  to  three  “ free 
persons,”  whether  colored  or  aliens.  See  Story’s  Const.  § 630-689, 
3d*Ed.,  and  the  voluminous  notes,  which  exhaust  the  whole  sub- 
ject. 


What  are 
numbers  ? 

144,  23. 

506,  507 


2 4 . Numbers. — The  meaning  of  the  word  “numbers”  is,  that 
two-fifths  of  all  the  slaves  were  excluded ; but  the  free  negroes,  and 
all  other  persons,  except  tribes  of  Indians,  were  enumerated.  The 
total  numbers  by  the  eighth  census  (1860)  were: — 


In  the  free  States  and  Territories — whites 18,936,579 

“ “ “ free  colored 237,218 

In  the  slave  States — whites 8,039,000 

“ “ slaves 3,950,000 

“ “ free  colored 251,000 

Deduct  two- fifths  of  slave- population 1,580,000 

Leaving  a representative  slave  population  of 2,370,000 

Total  free  population  in  the  States,  District  of  Columbia, 

and  Territories i 27,463,797 

Total  slave  population 3,961,129 

Ratio  of  representatives 127,381 


The  apportionment  of  representation  under  the  census  of  1860 
was  as  follows:  Alabama  6,  Arkansas  3,  California  3,  Connecticut 
4,  Delaware  1,  Florida  1,  Georgia  7,  Illinois  14,  Indiana  11,  Iowa 


01.  3.] 


NUMBERS,  24 


69 


6,  Kentucky  9,  Louisiana  5,  Maine  5,  Maryland  5,  Massachusetts  What  was 
10,  Michigan  6,  Minnesota  2,  Mississippi  5,  Missouri  9,  New  Hamp-  apportion- 
shire  3,  New  Jersey  5,  New  York  31,  North  Carolina  7,  Ohio  19,  ^q?’ m 
Oregon  1,  Pennsylvania  24,  Khode  Island  2,  South  Carolina  4, 
Tennessee  8,  Texas  4,  Vermont  3,  Virginia  11,  Wisconsin  6.  The 
territories  of  Kansas,  Nebraska,  and  Nevada  have  since  been 
admitted  as  States,  each  with  1 representative  ; Colorado  has  been  168 
organized  under  an  enabling  act,  and  will  be  admitted  with  1 
representative;  Virginia  has  been  divided,  and  West  Virginia  has 
3 representatives,  leaving  Virginia  8. 

NUMBERS  OF  THE  STATES  AND  TERRITORIES,  &c.— 1860. 


Alabama 

Arkansas 

California. 

Connecticut 

Delaware 

Florida 

Georgia 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts  . . 

Michigan 

Minnesota 

Mississippi 

Missouri 

Mew  Hampshire. 

New  Jersey 

New  York 

North  Carolina. 

Ohio 

Oregon  

Pennsylvania. . . 
Rhode  Island... 
South  Carolina.. 

Tennessee. 

Texas 

Vermont 

Virginia 

Wisconsin...... 


TERRITORIES. 

Colorado 

Nakota 

Debraska 

Nevada 

New  Mexico 

Utah 

Washington 

District  of  Columbia 


census  of  1860. 


White. 


526,431 

324,191 

361,353 

451,520 

90,589 

77,748 

591,588 

1,704,323 

1,339,000 

673,844 

106.579 
919,517 
357,629 
626,952 
515,918 

1,221,464 

742,314 

171,864 

353,901 

1,063,509 

325.579 
646,699 

3,831,730 

631,100 

2,302,838 

52,337 

2,849,266 

170,668 

291.388 
826,782 
421,294 

314.389 
1,047,411 

774,710 


26,706,425 


34,231 

2,576 

28,759 

6,812 

82,924 

40,214 

11,138 

60,764 


26,973,843 


Free 

colored. 


2,690 

144 

4,086 

8.627 
19,829 

932 

3,500 

7.628 
11,428 

1,069 

625 

10,684 

18,647 

1,327 

83,942 

9,602 

6,799 

259 

773 

3,572 

494 

25,318 

49,005 

30,463 

36.673 

128 

56,849 

3,952 

9,914 

7,300 

355 

709 

58,042 

1.171 


476,536 


46 


67 

45 

85 

30 

30 

11,131 


487,970 


Slave. 


435,080 

111,115 


1,798 

61,745 

462,198 


2 

225,483 

331,726 


87,189 


436,631 

114,931 


18 

3*3 1,059  * 


402,406 

275,719 

182,566 


490,865 


3,950,531 


29 

3,185* 


3,953,760 


RATIO  OF  INCREASE  FROM  1850 
TO  1860. 


Total. 

White. 

Free 

colored. 

Slave. 

Total. 

964,201 

23.43 

18.76 

27.18 

24.96 

435,450 

99.88 

81.25 

135.91 

107.46 

379,994 

294.34 

324.74 

310.37 

460,147 

24.35 

12.14 

42.10 

112,216 

27.28 

9.72 

21.487 

22.60 

140,425 

64.70 

57.07 

60.59 

1,057,286 

13.42 

19.41 

21.10 

16.67 

1,711,951 

101.45 

40.32  . 

101.06 

1,350,428 

37.03 

1.47 

36.63 

674,913 

251.18 

231.53 

251.14 

107,206 

1,155,684 

20.76 

6.72 

6.87 

17.54 

708,002 

39.98 

, 6.78 

35.50 

36.74 

628,279 

7.76 

2.1 4 J 

7.74 

687,049 

23.14 

12.35 

3.52  7 

17.84 

1,231,066 

23.95 

5.93 

23.79 

749,113 

87.89 

1 63.22 

88.38 

172,123 

2,775.06 

709.38 

2,760,87 

791,305 

19.68 

16.887 

40.90 

30.47 

1,182,012 

79.64 

36.44 

31.47 

73.30 

326,073 

2.56 

5.007 

2.55 

672,035 

38.92 

6.33 

92.377 

37.27 

3,880,735 

25.70 

0.137 

25.29 

992,622 

14.12 

1*92 

14.73 

14.20 

2,339,511 

17.79 

41.12 

18.14 

52,465 

299.92 

38.167 

294.65 

2,906,115 

26.18 

6.01 

25.71 

174,620 

18.62 

7.68 

18.35 

703,708 

6.13 

10.65 

4.53 

5.27 

1,109,801 

9.24 

13.67 

15.14 

10.68 

604,215 

173.51 

10.587 

213.89 

184.22 

315,098 

0.31 

1.257 

0.31 

1,596,318 

17.06 

6.83 

3.83 

12.29 

775,881 

154.20 

8.44 

154.06 

31,148,047 

37.37 

12.30 

23.44 

35.04 

34,277 

o2,261 

2,576 

28,841 

6,847 

«10,507 

83,009 

34.73 

51.94 

40,273 

a426 

254.18 

11.53 

253.89 

11,168 

75,080 

60.15 

10.66 

13.627 

45.26 

31,443,322 

37.97 

12.33 

23.39 

35.59 

a Indians. 

[Preliminary  report  on  the  eighth  census,  page  131.] 


70 


NUMBERS,  24, 


[Art.  I.,  Sec.  2., 


The  following  table , showing  the  population  of  the  States  at 
the  different  decades , from  1790  to  1860,  has  been  prepared 
by  the  editor  with  great  care ; and , as  the  numbers  are 
taken  from  the  census  reports , he  feels  confident  that  it  is 
correct  : — 


STATES. 

1790. 

1800. 

1810. 

1820. 

1830. 

1840. 

1850. 

1860. 

20,845 

127,901 

14,273 

309,527 

30,388 

590,756 

97,574 

771,623 

209,897 

92.597 

370,792 

91,532 

87,445 

906,185 

851,470 

988,416 

192,214 

964,201 

435,450 

379,994 

460,147 

112,216 

140,425 

1,057,2S6 

1,711,951 

1,350,428 

674,913 

107,206 

1,155,684 

708,002 

628,279 

687,049 

1,231,066 

749,113 

172,123 

791,305 

1,182,612 

326,073 

632,035 

3,880,735 

992,622 

2,339,511 

52,465 

2,906,115 

174,620 

703,708 

1,109,801 

604,215 

315,098 

1,596,318 

775,881 

California 

238,141 

59,096 

251,002 

64,273 

262,042 

72,674 

275,202 

72,749 

297,675 

76,748 

34,730 

516,823 

157,445 

343,031 

309,978 

78,085 

54,477 

691,392 

476,183 

685,866 

43,112 

Florida  *••••••••••••• 

fieorgia 

82,548 

162,101 

252,433 

12,282 

24,520 

340, 9S7 
55,211 
147,178 

Illinois 

Indiana. . ••••.•••••••• 

4,875 

Town.  _ T r 

Kansas 

Kentucky 

73,077 

220,955 

406,511 

76,556 

228,705 

380,546 

472,040 

4,762 

564,317 

153,407 

298,335 

407,350 

523,281 

8,896 

687,917 

215,739 

399,455 

447,040 

610,408 

31,639 

779,828 

352,411 

501,793 

470,017 

737,699 

212,267 

982,405 

517,762 

583,169 

583,034 

994,514 

397,654 

6,077 

606,526 

682,044 

317,976 

489,555 

3,097,394 

869,039 

1,980,329 

13,294 

2,311,786 

147,545 

668,507 

1,002,717 

212,592 

314,120 

1,421,661 

305,391 

Louisiana  •••••••••••• 

Maine 

96,540 

319,728 

378,717 

151,719 

341,548 

423,245 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

8,850 

40,352 

20,845 

214,360 

245,555 

959,049 

555,500 

237,760 

75,448 

66,586 

244,161 

277,575 

1,372.812 

638,829 

581,434 

136,621 

140,455 

269,328 

320,823 

1,918,608 

737,987 

937,903 

375,651 

383,702 

284,574 

373,306 

2,428,921 

753,419 

1,519,467 

Missouri  P i.. 

New  Hampshire 

141,899 

184,139 

340,120 

393,751 

183,762 

211,949 

586,756 

478,103 

45,365 

New  Jersey 

New  York 

North  Carolina 

Ohio 

Oregon 

Pennsylvania 

434,373 

69,110 

249,073 

35,791 

602,361 

69,122 

345,591 

105,602 

810,091 

77,031 

415,115 

261,727 

1,049,458 

83,059 

502,741 

422,813 

1,348,233 

97,199 

581,185 

681,904 

1,724,033 

108,830 

594,398 

829,210 

Rhode  Island  

South  Carolina 

Tennessee  

Texan 

Vermont 

85,416 

748,308 

154,465 

880,200 

217,713 

974,622 

235,764 

1,065,379 

280,652 

1,211,405 

091,948 

1,239,797 

30,945 

Virginia 

Wisconsin 

Total 

3,929,827 

5,291,832 

7,215,791 

9,605,192 

12,826,186 

17,025,741 

23,067,262 

31,148,047 

36,538 
2,576 
28,841 
17,364 
83  009 
4(\699 
11,169 
75,080 

TERKITOKIEB. 

Colorado 

"Dakota 

Nohraska 

Nevada 

New  Mexico  

61,547 

11,380 

Utah 

Washington .. . 

District  of  Columbia.. 

14,093 

24,023 

33,029 

39,834 

43,712 

51,687 

Total  

3,929,827 

5,305,925 

7,239,814 

9,638,131 

12,8  6,02( 

17,069,453 

23,191,876 

31,443,322 

And  see  Story’s  Const.,  § 644,  note  1 of  3d  Ed.,  Preliminary  report  on  the 
eighth  census,  pages  6 and  131. 


01.  3.] 


NUMBERS,  24. 


<»  *3 

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f 

I 


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CO  <3 
CO  o 


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05 

<45 

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43 


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3.3 


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N 

a 

§ 

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*0981  °1  0611 
niojj  asuaaoui  jo 
•jaao  Jed  ajug 

700.16 

T50.30 

720.65 

747.66 
466.53 
486.48 

•asuauoui  jo 
•juao  jad  ajug 

35.59 

37.97 

12.33 

37.40 

! 

23.39 

22.07 

‘0981 

31,443,322 

27,973,843 

487,970 

26,461,813 

3,953,760 

4,441,730 

•9SU9J0UI  JO 
•^U90  J9d  ajug 

35.87 

37.74 

12.46 

37.07 

28.82 

26.62 

1850. 

23,191,876 

19,553,114 

434,449 

19,987,563 

3,204,313 

3,638,762 

•asua-ioai  jo 
•juao  jad  ajug 

32.67 

34.72 

20.87 

34.31 

23.81 

13.41 

: 

1840. 

17,069,453 

14,195,695 

386,303 

14,581,998 

2,487,455 

2,873,758 

•9SU9J0UI  JO 
•JU9D  J9d  8JUg 

33.49 

34.03 

36.87 

34.11 

30.61 

31.45 

1830. 

12,866,020 

10,537,378 

319,599 

10,856,977 

2,009,043 

2,328,642 

•asuajoai  jo 
•juao  .iad  ajug 

33.13 

34.11 

25.23 

33.84 

28.79 

28.58 

1820. 

9,638,131 

7,861,937 

233,524 

8,095,461 

1,538,038 

1,771,562 

•08U9JOUI  JO 

•juao  jad  a jug; 

36.45 

36.1S 

72.00 

37.06 

33.40 

37.58 

1810. 

7,239,814 

5,862,004 

186,446 

6,048,450 

1,191,364 

1,377,810 

•asua-ioui  jo 
•juaa  aad  ajug 

35.02' 

35.68 

82.28 

36.54 

27.97 

32.23 

I 

*0081 

5,305,925 

4,304,489 

108,395 

4,412,884 

893,041 

1,001,436 

1790. 

3,929,827 

3,172,464 

59,466 

3,231,930 

697,897 

757,363 

Aggregate  population. 

Total  population 

Total  white  population 
Total  free  colored  pop . 
Total  free  population. . 
Total  slave  population. 
Total  col’d  population . 

71 


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72 


How  are 
vacancies 
filled  ? 


Upon  what 
does  the 
executive 
act? 


How  are  va- 
cancies 
created  ? 


62, 151. 


Power  of 
choosing  of- 
ficers, and 
of  impeach- 
ment. 

What  is  the 
Speaker  ? 


VACANCIES,  HOUSE,  25,  26.  [Art.  I.  Sec  2, 

[4.]  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

25.  The  executive  of  a State  may  receive  the  resignation  of  a 
member,  and  issue  writs  for  a new  election,  without  waiting  to  be 
informed  by  the  house  that  a vacancy  exists.  Mercer’s  Case,  Cl.  <fc 
Hall,  44;  Edwards’s  Case,  Id.  92:  Newton’s  Case,  February,  1847. 

Colonel  Yell  had  not  resigned;  but  had  become  a colonel  of  vol- 
unteers in  the  army  in  the  war  against  Mexico,  in  1846.  The  gov- 
ernor assumed  that  the  two  offices  were  incompatible : and,  after 
a resolution  by  the  Arkansas  legislature  to  that  effect,  he  issued  a 
proclamation  for  an  election  to  fill  the  vacancy.  Thomas  C.  New- 
ton was  returned,  and  the  house  refused  to  consider  the  question 
of  vacancy. 

Vacancies,  therefore,  may  be  created  by  death,  resignation,  re- 
moval, or  accepting  incompatible  offices.  See  Paschal’s  Annotated 
Digest,  note  200 ; Powell  v.  Wilson,  16  Tex.  60;  The  People  v.  Car- 
rique,  2 Hill  93 ; Biencourt  v.  Parker,  27  Tex.  562. 

The  acceptance  of  an  incompatible  office  is  an  absolute  determi- 
nation of  the  original  office.  (Rex  v.  Trelawney,  3 Burr.  1616; 
Millwood  v.  Thatcher,  2 Tr.  Rep.  87 ; Wilcock  on  Municipal  Cor- 
poration, 240,  617 ; Angel  & Ames  on  Corporations,  255 ;)  Biencourt 
v.  Parker,  27  Tex.  562. 

[5.]  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment. 

20.  The  Speaker  is  the  presiding  officer  of  the  House  of  Repre- 
sentatives, who  is  elected  at  the  meeting  of  the  first  session  of 
each  Congress,  and  before  there  can  be  any  organization.  At  the 
opening  of  the  34th  and  the  36th  Congresses,  there  being  three 
political  parties  represented,  there  were  very  great  delays,  as  will 
be  seen  in  the  table.  The  Speaker  has  the  appointment  of  all 
standing  committees ; and  he  becomes  President  of  the  United 
States  in  the  absence  of  the  Vice-President,  and  of  the  presiding 
officer  of  the  Senate. 


73 


CL  4,  5.]  SPEAKERS,  IMPEACHMENT,  26,  27, 


The  Speakers  have  been: — Name  the 

Speakers  ? 


Con- 

gress. 

Ses- 

sion. 

Names  of  Speakers. 

Election,  or 
commence- 
ment of  ser- 
vice. 

Termination 
of  service. 

States  of  which 
they  were  rep- 
resentatives. 

1 

1 

Fred.  A.  Muhlenberg 

April  1, 1789 

Mar. 

3, 1791 

Pennsylvania. 

2 

1 

Jonathan  Trumbull 

Oct.  24, 1791 

Mar. 

2, 1793 

Connecticut. 

3 

1 

Fred.  A.  Muhlenberg 

Dec.  2,1793 

Mar. 

3, 1795 

Pennsylvania. 

4 

1 

Jonathan  Dayton 

Dec.  7, 1795 

Mar. 

3, 1797 

New  Jersey. 

5 

1 

Jonathan  Dayton 

May  15,  1797 

Mar. 

3, 1799 

do. 

6 

1 

Theodore  Sedgwick 

Dec.  2,1799 

Mar. 

3, 1801 

Massachusetts. 

7 

1 

Nathaniel  Macon 

Dec.  7,1801 

Mar. 

3,  1803 

N.  Carolina. 

8 

1 

Nathaniel  Macon 

Oct.  17,  1803 

Mar. 

3, 1805 

do. 

9 

1 

Nathaniel  Macon 

Dec.  2, 1805 

Mar. 

3,  1807 

do. 

10 

1 

Joseph  B.  Varnum 

Oct.  26,  1807 

Mar. 

3,  1809 

Massachusetts. 

11 

1 

J oseph  B.  V arnum 

May  22,  1809 

Mar. 

3,  1811 

do. 

12 

1 

Henry  Clay 

Nov.  4,  1811 

Mar. 

8,  1813 

Kentucky. 

13 

1 

Henry  Clay 

May  24, 1813 

Jan.  : 

19,  1814 

do. 

13 

2 

Langdon  Cheves 

Jan.  19,  1814 

Mar. 

2,  1815 

S.  Carolina. 

14 

1 

Henry  Clay 

Dec.  4, 1815 

Mar. 

3,  1817 

Kentucky. 

15 

1 

Henry  Clay 

Dec.  1,1817 

Mar. 

3,  1819 

do. 

16 

1 

Henry  Clay 

Dec.  6, 1819 

Nov.  13, 1820 

do. 

16 

2 

John  W.  Taylor. 

Nov.  15,  1820 

Mar. 

3,  1821 

New  York. 

17 

1 

Philip  P.  Barbour 

Dec.  3,  1821 

Mar. 

3,  1823 

Virginia. 

18 

1 

Henry  Clay 

Dec.  1,1823 

Mar. 

3,  1825 

Kentucky. 

19 

1 

John  W.  Taylor. 

Dec.  5,1825 

Mar. 

3, 1827 

New  York. 

20 

1 

Andrew  Stevenson 

Dec.  3, 1827 

Mar. 

3, 1S29 

Virginia. 

21 

1 

Andrew  Stevenson 

Dec.  7,1829 

Mar. 

3,  1831 

do. 

22 

1 

Andrew  Stevenson 

Dec.  5, 1831 

Mar. 

2,  1833 

do. 

23 

1 

Andrew  Stevenson 

Dec.  2,1833 

June 

2, 1834 

do. 

23 

1 

John  Bell 

June  2, 1834 

Mar. 

3,  1835 

Tennessee. 

24 

1 

James  K.  Polk 

Dec.  7,  1835 

Mar. 

3, 1837 

do. 

25 

1 

James  K.  Polk 

Sept.  4,  1837 

Mar. 

3,  1839 

do. 

26 

1 

Robert  M.  T.  Hunter 

Dec.  16,  1839 

Mar. 

3, 1841 

Virginia. 

27 

1 

John  White. 

May  31,  1841 

Mar. 

3, 1843 

Kentucky. 

28 

1 

John  W.  Jones 

Dec.  4, 1843 

Mar. 

3,  1845 

Virginia. 

29 

1 

John  W.  Davis 

Dec.  1,  1845 

Mar. 

3, 1847 

Indiana. 

80 

1 

Robert  C.  Winthrop 

Dec.  6,1847 

Mar. 

3,  1849 

Massachusetts. 

31 

1 

Howell  Cobb 

Dec.  22,  1849 

Mar. 

3,  1S51 

Georgia. 

82 

1 

Linn  Boyd 

Dec.  1, 1851 

Mar. 

3, 1853 

Kentucky. 

33 

1 

Linn  Boyd 

Dec.  5,  1853 

Mar. 

3,  1855 

do. 

34 

1 

Nathaniel  P Banks  

Feb.  2,  1856 

Mar. 

3,  1857 

Massachusetts. 

35 

1 

James  L.  Orr 

Dec.  7, 1857 

Mar. 

3, 1859 

S.  Carolina. 

36 

1 

William  Pennington 

Feb.  1,1860 

Mar. 

3,  1861 

New  Jersey. 

37 

1 

Galusha  A.  Grow 

July  4,1861 

Mar. 

3, 1863 

Pennsylvania. 

38 

1 

Schuyler  Colfax. 

Dec.  7, 1863 

Mar. 

3, 1865 

Indiana. 

89 

1 

Schuyler  Colfax. 

Dec.  4,  1865 

Mar. 

3,  1867 

do. 

40 

1 

Schuyler  Colfax. 

Mar.  4,1867 

do. 

The  names  of  Speakers,  pro  tem., who  served  temporarily,  for  one  or  more 
days,  have  been  omitted.  The  delays  of  elections  in  the  34th  and  36th  Con- 
gresses were  caused  by  political  contests. 


27.  Impeachment.-—- W e must  look  to  the  common  law  for  the  What  isim- 
definition  of  impeachment.  William  Wirt,  Peck’s  Trial,  499 ; peachment  ? 
James  Buchanan,  Peck’s  Trial,  437,  438.  And  see  1 Chase’s 
Trial,  47,  48;  2 Id  9-18;  4 Elliot’s  Debates,  262.  It  is 
designed  as  a method  of  national  inquest  into  the  conduct  of 
public  men.  Story  on  the  Const.  § 689.  To  exhibit  articles  of  89, 191-194. 
accusation  against  a public  officer  before  a competent  tribunal. 

Burrill’s  Law  Die.  Impeachment.  It  is  a presentment  by 

10 


74 


IMP’jVIENT,  SENATE,  27,  28,  29.  [Art.  I.,  Sec.  3, 


Pickering’s 
Case  ? 


193,  194. 
194 


the  House  of  Commons,  the,  most  solemn  grand  inquest  of  the  whole 
kingdom,  to  the  House  of  Lords,  the  most  high  and  supreme  court 
of  criminal  jurisdiction  of  the  kingdom.  (2  Hale’s  PI.  of  Cr.  150; 
4 Blacks.  Com.  259;  2 Wilson’s  Law.  Lect.  165, 166;  2 Woodeson’s 
Lect.  40,  p.  596.)  Story’s  Const.  § 688.  The  objects,  openness, 
and  dignity  of  the  proceeding.  (Rawle,  Const.  69,  187,  225, 
236;  2 Elliott’s  Debates,  48-46.)  Story’s  Const.  §§  688-9. 
Judge  Pickering  was  impeached,  tried,  convicted,  and  removed 
in  his  absence,  and  without  counsel.  His  offense  was,  that  he  was 
deprived  of  reason.  Farrar,  § 169.  The  judgment  was  removal 
from  office.  Story’s  Const.  § 803,  note  1.  For  an  enumeration  of 
the  impeachable  crimes  at  common  law,  see  2 Woodeson’s  Lect.  40, 
p.  202;  Com.  Dig.  L.  28-42;  Story’s  Const.  § 799-803. 


How  and  by  Sec.  III. — [1.1  The  senate  of  the  United  States  shall 

whom  are  ..  _ n 

senators  be  composed  ot  two  senators  from  each  state,  chosen 
by  the  legislature  thereof,  for  six  years ; and  each  sen- 
yote?  ator  shall  have  one  vote. 

What  are  28.  Consider  the  nature  of  the  representation ; the  mode  of  ap- 
the  objects?  pointment;  the  number  of  senators;  their  term  of  service;  and 
their  qualifications.  1 Story’s  Const.  § 691.  It  makes  the  States 
Why  two  for  equal  in  the  senate.  This  result  was  obtained  as  a compromise, 
each  state?  without  which  the  Convention  must  have  been  dissolved.  Curtis’s 
Hist,  of  the  Const.  41,  48,  100,  105,  106;  1 Story’s  Const.  § 690- 
700;  2 Pitkin’s  Hist.  233,  245,  247,  248;  4 Elliot’s  Debates,  74- 
92;  Id.  99-101;  Id.  107,  108,'  112-127;  2 Id.  233,  245;  Luther 
Martin’s  Letter  in  4 Elliot’s  debates,  1-45.  The  election  by  the 
Why  elected  legislature  was  mainly  to  secure  the  cooperation  of  the  State  with 
bytheLegis- the  federal  government.  (The  Federalist,  Nos.  27,  62;  1 Kent’s 
a ure ' Com.  Lect.  11,  p.  211.)  Story’s  Const.  § 704. 

How  It  was  not  fully  settled  whether  the  elections  should  be  by  joint 

dccted?  or  concurrent  vote,  until  the  act  of  Congress  in  these  notes.  (1 
Rawle’s  Const.  37 ; 1 Kent’s  Com.  Lect.  11  p.  211,  212.)  The  num- 
bers considered.  1 Story’s  Const.  § 706—708;  2 Curtis’s  Hist,  of 
Const,  passim.  There  was  Hamilton’s  opinion  in  favor  of  tenure 
What  was  during  good  behavior.  Curtis’s  Hist,  of  the  Const.  100,  105 ; 
Hamilton’s  Story’s  Const.  § 709,  note  2 in  3d  Ed.  The  advantages  of  the 
opinion  ? present  system  and  the  classification  fully  discussed ; Id.  § 709-727. 
Effect  of  two  Practically,  the  fact  that  each  senator  has  one  vote  often  divides 
votes  ? the  State  upon  questions  of  party  interest. 


What  has  29.  Where  the  election  is  by  a joint  convention  of  the  two 
been  the  houses  of  the  legislature,  it  is  not  necessary  that  there  should  be  a 

practice.  concurrent  majority  of  each, house  in  favor  of  the  candidate  de- 
Cameron’s  dared  to  be  elected.  Cameron’s  Case,  United  States  Senate,  13th 
case.  March,  1857.  The  election,  however,  must  be  substantially  by 

28,  30  both  houses,  as  distinct  bodies.  The  mere  fact  that  a majority  of 
the  joint  body,  or  even  of  each  body,  is  present,  does  not  constitute 
the  aggregate  body  a legislature,  unless  the  two  bodies,  actirtg 
separately,  have  voted  to  meet,  and  have  actually  met  accordingly. 


01.  ).]  SENATORS,  ELECTION  OF,  30.  75 


Harlan’s  Case,  United  States  Senate,  12th  January,  1857;  10  Law  Harlan’s 

Rep.  1-6.  _ . case? 

In  the  case  of  John  P.  Stockton,  of  Hew  Jersey,  in  1866,  it  was  Stockton’s 
held  that  where  the  two  bodies  met  in  convention  to  elect  a senator,  caBe  ? 
and  no  one  having,  after  numerous  ballots,  received  a majority  of 
the  votes  cast,  and  the  convention  then  resolved  to  elect  by  plurality, 
and  did  so  elect,  it  was  not  an  election  by  the  legislature,  and  Mr. 

Stockton  was  refused  his  seat.  Senate  Journal,  4th  Dec.,  1865  ; 

8th  Jan.,  30th  Jan.,  and  26th  March,  1866. 

For  the  reasons  which  led  to  an  equal  representation  in  the  sen-  Why  two 
ate,  and  for  a longer  term  of  service,  see  2 Curtis’s  History  of  the  senators 
Constitution,  p.  138-141,  165,  166,  186,  217.  This  is  one  of  the 
sections  under  which  it  has  been  urged  that  the  right  of  the  sece- 
ded States  to  representation  in  the  senate  is  optional,  absolute, 
and  unqualified.  While  the  precedent  is  that  the  reestablish- 
ment of  the  representation  depends  upon  the  reestablished 
loyalty  of  the  State,  and  the  ability  of  the  senators  elected  to 
take  the  test  oath. 


46. 


242. 

275,  279. 


30*  The  mode  of  election  has  now  been  settled  by  the  following 

act: — 

CHAP.  CCXLY. — An  Act  to  regulate  the  Times  and  Manner  of  hold-  July  25,1866, 
ing  Elections  for  Senators  in  Congress.  14  st'»  243* 


Be  it  enacted , (fee.,  1.  That  the  legislature  of  each  State  which  What  legis- 
shall  be  chosen  next  preceding  the  expiration  of  the  time  for  which 
any  senator  was  elected  to  represent  such  State  in  Congress,  shall,  when  t0 
on  the  second  Tuesday  after  the  meeting  and  organization  thereof,  elect  sena- 
proceed  to  elect  a senator  in  Congress,  in  the  place  of  such  senator tors  ? 
so  going  out  of  office,  in  the  following  manner : Each  house  shall  What  is  the 
openly,  by  a viva  voce  vote  of  each  member  present,  name  one  per  son  q10^  of  elec- 
for  senator  in  Congress  from  said  State,  and  the  name  of  the  person11011  ’ 
so  voted  for,  who  shall  have  a majority  of  the  whole  number  of 
votes  cast  in  each  house  shall  be  entered  on  the  journal  of  each 
house  by  the  clerk  or  secretary  thereof ; but  if  either  house  shall  fail 
to  give  such  majority  to  any  person  on  said  day,  that  fact  shall  be 
entered  on  the  journal.  At  12  o’clock,  meridian,  of  the  day  fol- 
lowing that  on  which  proceedings  are  required  to  take  place,  as 
aforesaid,  the  members  of  the  two  houses  shall  convene  in  joint 
assembly  and  the  journal  of  each  house  shall  then  be  read,  and  if 
the  same  person  shall  have  received  a majority  of  all  the  votes  in 
each  house,  such  person  shall  be  declared  duly  elected  senator  to 
represent  said  State  in  the  Congress  of  the  United  States ; but  if 
the  same  person  shall  not  have  received  a majority  of  the  votes  in 
each  house,  or  if  either  house  shall  have  failed  to  take  proceedings 
as  required  by  this  act,  the  joint  assembly  shall  then  proceed  to 
choose  by  a viva  voce  vote  of  each  member  present,  a person  for 
the  purpose  aforesaid,  and  the  person  having  a majority  of  all  the 
votes  of  the  said  joint  assembly,  a majority  of  all  the  members 
elected  to  both  houses  being  present  and  voting,  shall  be  declared 
duly  elected ; and  if  no  person  shall  receive  such  majority  on  the 
first  day,  the  joint  assembly  shall  meet  at  twelve  o’clock,  meridian, 


76 


CLASSIFICATION,  31,  32  33,  34.  [Art.  I.,  Sec.  3, 


of  each  succeeding  day  during  the  session  of  the  legislature,  and 
take  at  least  one  vote  until  a senator  shall  be  elected. 

What  are  the  2.  Whenever,  on  the  meeting  of  the  legislature  of  any  State,  a 

proceedings  vacancy  shall  exist  in  the  representation  of  such  State  in  the  Sen- 
senator  to  ate  the  United  States,  said  legislature  shall  proceed,  on  the  sec- 
fill  a ond  Tuesday  after  the  commencement  and  organization  of  its  session, 

vacancy?  to  elect  a person  tok^ll  such  vacancy,  in  the  manner  herein-before 

provided  for  the  election  of  a senator  for  a full  term;  and  if  a 
vacancy  shall  happen  during  the  session  of  the  legislature,  then  on 
the  second  Tuesday  after  the  legislature  shall  have  been  organized 
and  shall  have  notice  of  such  vacancy. 

flow  is  the  3.  It  shall  be  the  duty  of  the  governor  of  the  State  from  which 
election  cer-  any  senator  shall  have  been  chosen  as  aforesaid  to  certify  his 
1 e ' election,  under  the  seal  of  the  State,  to  the  President  of  the  Sen- 
ate of  the  United  States,  which  certificate  shall  be  countersigned 
by  the  Secretary  of  State  of  the  State. 


What  is  the 
classifica- 
tion? 


If  vacancies 
occur? 


[2.]  Immediately  after  they  shall  be  assembled,  in 
consequence  of  the  first  election,  they  shall  be  divided, 
as  equally  as  may  be,  into  three  classes.  The  seats  of 
the  senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at 
the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year;  and  if  vacancies  happen 
by  resignation,  or  otherwise,  during  the  recess  of  the 
legislature  of  any  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting 
of  the  legislature,  which  shall  then  fill  such  vacancies. 


Is  the  senate  31.  The  senate  is  a permanent  body;  its  existence  is  continued 
permanent?  and  perpetual.  Cushing’s  Law  of  Legislative  assemblies,  19. 

But  should  a majority  of  the  States  persistently  refuse  to  elect 
senators,  the  government  would  come  to  an  end.  Cohens  v.  Vir- 
ginia, 6 Wh.  264;  5 Cond.  106. 


How 
vacated  ? 
Bledsoe’s 
case. 


32.  The  seat  of  a senator  is  vacated  by  a resignation  addressed 
to  the  executive  of  a State,  notwithstanding  he  may  have  received 
no  notice  that  his  resignation  has  been  accepted.  Bledsoe’s  Case, 
Cl.  & Hall,  869. 


Can  the  exe-  33.  It  is  not  competent  for  the  executive  of  a State,  during  the 
cutive  fill  a recess  of  the  legislature,  to  appoint  a senator  to  fill  a vacancy  which 
vacancy1?''6  happen,  but  has  not  happened  at  the  time  of  the  appointment. 
Laninan’s  Lanman’s  Case,  Cl.  & Hall,  871. 

ITow  is  the  34.  For  a classification  and  list  of  senators,  see  Hickey’s  Consti 
Class! fica-  tution,  316-388.  The  classification  is  settled  by  lot  when  the 

tion  settled  ? senators  first  appear  fr0m  a new  State,  in  the  mode  adopted  in  the 


Cl.  2,  3,  4.]  SENATORS,  VICE-PRESIDENT,  35,  36.  37. 


77 


first  classification,  so  as  to  prevent  two  vacancies  occurring  in  the  For  what 
same  State  at  the  same  time.  (Journals  of  Senate,  15th  May,  1189,  purpose? 

25,  26,  edition  of  1820.)  1 Story’s  Const.  § 509.  The  classification 

gives  some  analogy  to  the  principle  of  two  years  tenure  in  the  house  How  many 
of  representatives,  by  the  vacation  of  one-third  of  the  terms  every  senators? 
fourth  of  March.  The  whole  number  of  States  being  now  thirty- 
seven,  the  number  of  senators  would  be  seventy -four ; but  ten  States  46. 
not  being  represented  in  the  senate,  there  are  only  fifty-four  senators  275,  279. 

[3.]  ~No  person  shall  be  a senator  who  shall  not  have  wh^arethe 
attained  to  the  age  of  thirty  years,  and  been  nine  years  tions  of  sen- 
a citizen  of  the  United  States,  and  who  shall  not,  when  at01b  ‘ 
elected,  be  an  inhabitant  of  that  State  for  which  he 
shall  be  chosen. 


35.  The  term  “person”  here  is  subject  to  the  same  criticism  as  what  is 
to  the  qualifications  of  members  of  the  house,  and  necessarily  cannot  meant  by 

person  ? 


be  as  comprehensive  as  “all  other  persons”  in  the  3d  clause  of 
the  first  section.  See  Farrar’s  Criticism,  § 125-141.  Words  must 
receive  their  necessary  signification  and  be  construed  according  to 
the  context,  precedent  and  practice.  “Senator”  is  sufficiently 
masculine,  and  is  made  certain  by  “he .”  See  Gallatin’s  Case,  Cl.  & 
Hall,  851;  Shield’s  Case,  who  was  rejected  for  want  of  nine  years’ 
naturalization,  “ at  the  commencement  of  the  term  for  which  he  was 
elected.”  See  Senate  Journal,  from  5th  to  15th  March,  1849. 
Shields  was  re-elected,  and  returned  to  the  senate  at  its  next 
session — was  qualified,  and  took  his  seat. 


16,  24,  46. 

Is  “senator’ 
masculine  ? 
19. 

Gallatin’s 

case? 

Shield’s 

case? 

98. 

18. 


[4.]  The  Vice-President  of  the  United  States  shall  who  is  pres 
be  President  of  the  Senate,  but  shall  have  no  vote,  senatef  the 
unless  they  be  equally  divided.  168  a 


36.  Vi'ce  [prep.],  in  place  of  the  president.  Webster’s  Die. 

Yi'ce.  The  reasons  for  this  officer  presiding  discussed.  Story’s 
Const.  § 732-741.  The  question  of  the  inherent  powers  of  the  What  are  the 
vice-president  is  still  open,  it  having  been  ruled  in  1826,  that  he  is  vice-presi- 
without  power,  as  presiding  officer,  except  as  it  is  given  by  the  s pow* 
rules  of  the  senate.  Story’s  Const.,  § 739;  1 American  Annual 
Register,  86,  87  ; 3 Id.  99  ; 4 Elliot’s  Debates,  311-315.  By  a rule 
of  1828,  “ every  question  of  order  shall  be  decided  by  the  president 
without  debate,  subject  to  appeal  to  the  senate.”  3 Annual  Reg. 

99  ; Story’s  Const.,  § 740  ; 3 Jefferson’s  Manual,  15,  17. 


38. 


37.  The  following  have  been  the  vice-presidents:  John  Adams,  Fame  the 
from  4 March  1789  to  3 March  1797  ; Thos  Jefferson,  from  4 March  vice-presi- 
1797  to  3 March  1801;  Aaron  Burr,  from  4 March  1801  to  3 March  thSt8 terms 
1805;  George  Clinton,  from  4 March  1805  to  3 March  1813;  El- 0f  office? 
bridge  Gerry,  from*  4 March  1813  to  3 March  1817;  Daniel  D. 

Tompkins,  from  4 March  1817  to  3 March  1825;  John  C.  Calhoun, 


VICE-PKESIDENT,  &C.,  37,  38.  [Art.  I.,  Sec.  3, 


ryc> 


Vice  Pres-  from  4 March  1825  to  3 March  1833;  Martin  Yan  Buren,  from  4 
idents.  March  1833  to  3 March  1837;  Richard  M.  Johnson,  from  4 March 
1837  to  3 March  1841;  John  Tyler,  from  4 March  1841  to  6 April 
1841;  George  M.  Dallas,  from  4 March  1845  to  3 March  1849;  Mil- 
lard Fillmore,  from  4 March  1849  to  10  July  1850 ; William  R.  King 
was  elected  in  1852  and  was  sworn  as  vice-president  in  1853,  in 
the  island  of  Cuba,  in  accordance  with  act  of  3d  March,  1853.  He 
died  in  Cuba,  having  never  presided.  John  C.  Breckinridge,  from 
4 March  1857  to  3 March  1861;  Hannibal  Hamlin,  from  4 March 
1861  to  3 March  1865;  Andrew  Johnson,  from  4 March  1865  to  14 
April  1865,  when  he  was  sworn  as  president  in  consequence  of  the 
assassination  of  Abraham  Lincoln. 

what  officers  [5.]  The  senate  shall  choose  their  other  officers,  and 
choose?  also  a president  pro  tempore , in  the  absence  ot  the 
vice-president,  or  when  he  shall  exercise  the  office  of 
36'  President  of  the  United  States. 

When  does  ®§.  This  presiding-officer,  under  an  act  of  Congress,  becomes  the 
tbe  presiding  President  of  the  United  States,  in  case  of  the  death  or  disability  of 
come1*  presi-  the  president  and  vice-president.  1 St.  § 9,  p.  240 ; Brightly’s  Dig. 
dent  ? 253.  Pro  tempore  means  for  the  time.  But  the  law  and  practice 

U2-  is  to  elect  a permanent  presiding  officer,  who  acts  during  the 

16S  a.  absence  of  the  vice-president,  and  when  the  vice-president  becomes 
President  of  the  United  States.  The  following  is  a list  of  these 
presiding  officers,  or  presidents  pro  tempore : — 


Name  the 
presiding 
officers. 


Names  of  Presidents  pro  tem- 
pore of  the  Senate. 


Attended. 


John  Langdon  ....... 

...  6 

April 

1789 

John  Langdon 

....  7 

Aug. 

1789 

Richard  Henry  Lee  . . . 

..  .18 

April 

1792, 

John  Langdon 

...  5 

Nov. 

1792 

John  Langdon 

...  1 

Mar. 

1793 

John  Langdon 

...  4 

Mar. 

1793. 

Ralph  Izard 

. . .31 

May 

1794. 

Ralph  Izard 

...  3 

Nov. 

1794 

Henry  Tazewell 

. ..20 

Feb. 

1795. 

Henrv  Tazewell 

...  7 

Dec. 

1795 

Samuel  Livermore 

...  6 

May 

179G 

William  Bingham 

. . .16 

Feb. 

1797. 

William  Bradford 

...  6 

July 

1797, 

Jacob  Read 

22 

Nov. 

1797 

Theodore  Sedgwick  . . . 

..  .27 

June 

1798 

Theodore  Sedgwick  . . . 

..  .17 

July 

1798, 

John  Lawrence 

...  6 

Dec. 

1798, 

James  Ross 

...  1 

Mar. 

1799 

Samuel  Livermore 

...  2 

Dec. 

1799 

Uriah  Tracy 

. . .14 

May 

1800. 

John  Eager  Howard  . . 

. . .21 

Nov. 

1800. 

James  Hillhouse. . . . . . 

Fob. 

1801. 

Retired. 


..21 

April 

1789 

. .19 

Aug. 

1789 

..  8 

May 

1792 

..  4 

Dec. 

1792 

..  3 

Mar. 

179*3 

..  4 

Mar. 

1793 

..  9 

June 

1794 

..  9 

Nov. 

1794 

..  3 

Mar. 

1795 

..  8 

Dec. 

1795 

..  1 

June 

1796 

Mar. 

1797 

. .10 

July 

1797 

. .12 

Dec. 

1797 

. .16 

July 

1798 

. .17 

July 

1798 

..26 

Dec. 

1798 

..  3 

Mar. 

1799 

..29 

Dec. 

1799 

. .14 

May 

1800 

. .27 

Nov. 

1800 

..  3 

Mar. 

1801 

01.  5.] 


PRESIDING-  OFFICERS,  38, 


79 


Names  of  Presidents  pro  tern - Attended 

Retired. 

pore  of  me  senate. 

Abraham  Baldwin 

..  7 Dec.  1801... 

1802 

Abraham  Baldwin 

..17  April  1802... 

1802 

Stephen  R.  Bradley  . . . . 

..14  Dec  1802... 

1803 

Stephen  R.  Bradley  . . . . 

. .25  Feb.  1803. . . 

25  Feb. 

1803 

Stephen  R.  Bradley  . . . . 

. . 2 Mar.  1803. . . 

1803 

John  Brown 

..17  Oct.  1803... 

1803 

John  Brown 

..23  Jan;  1804... 

1804 

Jesse  Franklin  

. .10  Mar.  1804.  . . 

1804 

Joseph  Anderson 

..15  Jan.  1805... 

Joseph  Anderson 

..28  Feb.  1805... 

1805 

Joseph  Anderson 

..  2 Mar.  1805.  .. 

1805 

Samuel  Smith 

..  2 Dec.  1805... 

1805 

Samuel  Smith 

. .18  Mar.  1806.  . . 

21  April  1806 

Samuel  Smith 

..  2 Mar.  1807... 

1807 

Samuel  Smith . . . 

..16  April  1808... 

Stephen  R.  Bradley .... 

..28  Dec.  1808  .. 

John  Milledge 

. .30  Jan.  1809. . . 

1809 

John  Milledge 

. . 4 Mar.  1809. . . 

1809 

Andrew  Gregg 

. .26  June  1809. . . 

1809 

Andrew  Gregg 

. .21  Nov.  1809. . . 

1809 

John  Gaillard 

..28  Feb.  1810. .. 

John  Gaillard 

..17  April  1810... 

1810 

J ohn  Gaillard 

..  3 Dec.  1810... 

11  Dec. 

1810 

John  Pope 

..23  Feb.  1811... 

1811 

William  H.  Crawford. . . 

. .24  Mar.  1812. . . 

1812 

William  H.  Crawford . . . 

. . 2 Nov.  1812... 

1813 

Joseph  B.  Varnum 

. . 6 Dec.  1813... 

1814 

John  Gaillard 

..18  April  1814... 

18  April  1814 

John  Gaillard 

..19  Sept.  1814... 

2 Mar. 

1815 

John  Gaillard 

. . 4 Dec.  1815... 

30  April  1815 

John  Gaillard 

. . 2 Dec.  1816. .. . 

1817 

John  Gaillard 

. . 4 Mar.  1817 

1817 

John  Gaillard 

. . 1 Dec.  1811. . . 

18  Feb. 

1818 

John  Gaillard 

. .31  Mar.  1818. ..  . 

John  Gaillard 

..16  Nov.  1818..., 

1819 

James  Barbour 

..15  Feb.  1819.... 

3 Mar. 

1819 

James  Barbour 

. . 6 Dec.  1819 

1819 

John  Gaillard 

..25  Jan.  1820 

1820 

John  Gaillard 

. .13  Nov.  1820 

1821 

John  Gaillard 

. . 3 Dec.  1821 

27  Dec. 

1821 

John  Gaillard 

. . 1.  Feb.  1822 

1822 

John  Gaillard 

. . 2 Dec.  1822 

1822 

John  Gaillard 

..19  Feb.  1823 

1823 

John  Gaillard. 

. . 1 Dec.  1823 

1824 

Jonn  Gaillard 

..21  May  1824 

1824 

John  Gaillard 

. . 6 Dec.  1824 

1825 

John  Gaillard 

. . 9 Mar.  1825 

1825 

Nathaniel  Macon  

. .20  May  1826 

1825 

Nathaniel  Macon  .» 

. . 2 Jan.  1827 

13  Feb. 

1827 

Nathaniel  Macon 

2 Mar.  1827 

1827 

I 


80 


PRESIDING  OFFICERS,  38.  [Art.  I.,  Sec.  3. 


Names  of  Presidents  pro  tem- 
pore of  the  Senate. 


Attended. 


Retired. 


Samuel  Smith  15  May  1828 26  May  1828 

Samuel  Smith. ..  .* 1 Dec.  1828 21  Dec.  1S28 

Samuel  Smith 13  Mar.  1829 17  Mar.  1829 

Samuel  Smith 7 Dec.  1829 13  Dec.  1829 

Samuel  Smith 29  May  1830 31  May  1830 

Samuel  Smith 6 Dec.  1830 2 Jan.  1831 

Samuel  Smith 


1 Mar.  1831 3 Mar.  1831 

Samuel  Smith 5 Dec.  1831 11  Dec.  1831 

Littleton  W.  Tazewell  ....  9 July  1832 16  July  1832 

Hugh  Lawson  White 3 Dec.  1832 2 Mar.  1833 

Hugh  Lawson  White 2 Dec.  1833 15  Dec.  1833 

George  Poindexter 28  June  1834 30  June  1834 

John  Tyler. 3 Mar.  1835 3 Mar.  1835 

William  R.  King 1 July  1836 4 July  1836 

William  R.  King 28  Jan.  1837 3 Mar.  1837 

William  R . King 7 Mar.  1837 10  Mar.  1837 

William  R.  King 13  Sept.  1837 12  Sept.  1837 

William  R.  King 2 July  1838 16  Oct.  1837 

William  R.  King 3 Dec.  1838 18  Dec.  1838 

William  R.  King. ....... .25  Peb.  1839.  3 Mar.  1839 

William  R.  King 2 Dec.  1839 26  Dec.  1839 

William  R King...* 3 July  1840 21  July  1840 

William  R.  King 7 Dec.  1840 15  Dec.  1840 

William  R.  King 2 Mar.  1841 3 Mar.  1841 

William  R.  King 4 Mar.  1841 4 Mar.  1841 

Samuel  L.  Southard 11  Mar.  1841 15  Mar.  1841 

Samuel  L.  Southard 31  May  1841 13  Sept.  1841 

Samuel  L.  Southard 6 Dec.  1841 30  May  1842 

Willie  P.  Mangum 31  May  1842 31  Aug.  1842 

Willie  P.  Mangum 5 Dec.  1842 3 Mar.  1843 

Willie  P.  Mangum 4 Dec.  1843 17  June  1844 

Willie  P.  Mangum 2 Dec.  1844 3 Mar.  1845 

Willie  P.  Mangum 4 Mar.  1845 4 Mar.  1845 

David  R.  Atchison 8 Aug.  1846 10  Aug.  1846 

David  R.  Atchison 11  Jan.  1847 14  Jan.  1847 

David  R.  Atchison 3 Mar.  1847 3 Mar.  1847 

David  R.  Atchison. 2 Feb.  1848 8 Feb.  1848 

David  R.  Atchison 1 June  1848 14  June  1848 

David  R.  Atchison 26  June  1848 29  June  1848 

David  R.  Atchison 29  July  1848 14  Aug.  1848 

David  R.  Atchison 4 Dec.  1848 4 Dec.  1848 

David  R.  Atchison 26  Dec.  1848 1 Jan.  1849 

David  R.  Atchison 2 Mar.  1849 3 Mar.  1849 

David  R.  Atchison 5 Mar.  1849 23  Mar.  1849 

William  R.King 6 May  1850 19  May  ]850 

William  R.King 11  July  1850 30  Sept.  1850 

William  R.King 2 Dec.  1850 3 Mar.  1851 

William  R.  King 1 Dec.  1851 31  Aug.  1852 

William  R. King 1 Dec.  1852 ....20  Dec.  1852 

David  R.  Atchison 20  Dec.  1852 3 Mar.  1853 


01.  5,  6.] 


IMPEACHMENTS,  38,  39. 


81 


Names  of  Presidents  pro  tem- 
pore of  the  Senate. 


Attended. 


David  R.  Atchison 5 Dec.  1853 

Jesse  D.  Bright 4 Dec.  1854, 

Jesse  D.  Bright 3 Dec.  1855 

Jesse  D.  Bright 21  Aug.  1856, 

Jesse  D.  Bright 2 Dec.  1856 

James  M.  Mason 5 Jan.  1857, 

Benjamin  Fitzpatrick 29  Mar.  1858. 

Benjamin  Fitzpatrick 24  Jan.  1859. 

Solomon  Foote 18  July  1861. 

Solomon  Foote 31  Mar.  1862, 

Solomon  Foote 20  June  1862, 

Solomon  Foote 18  Feb.  1863. 

Daniel  Clark 25  April  1864 

Daniel  Clark 9 Feb.  1865 

La  Fayette  S.  Foster 7 Mar.  1866, 

La  Fayette  S.  Foster 13  Dec.  1867. 

Benjamin  F.  Wade 4 Mar.  1867. 


Retired. 

, 7 Aug.  1854 
3 Mar.  1855 
8 Aug.  1856 
30  Aug.  1856 

5 Jan.  1857 

3 Mar.  1857 

4 May  1858 
10  Feb.  1859 

6 Aug.  1861 
21  May  1862 
17  July  1862 

4 Mar.  1863 
, 4 July  1864 
.19  Feb.  1865 
28  July  1866 

3 Mar.  1867 

4 Mar.  1869 


[6.]  The  senate  shall  have  the  sole  power  to  try  all  How  are im- 
impeachments.  When  sitting  for  that  purpose,  they  tried?ment8 
shall  be  on  oath  or  affirmation.  When  the  President  319-327. 
of  the  United  States  is  tried,  the  Chief-Justice  shall 
preside  ; and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present.  Two  thirds? 

39.  For  the  doctrine  of  impeachment,  see  Peck’s  Trial,  speeches  27, 191-194. 
for  the  prosecution  and  defence ; Reports  and  Debates  on  the  Im- 
peachment of  the  President,  December,  1867.  A judgment  of  im- 
peachment in  the  English  House  of  Lords  requires  that  at  least 
twelve  of  the  nlembers  should  concur  in  it;  and  “a  verdict  by 
less  than  twelve  would  not  be  good.”  Com.  Dig.  Parliament.  L. 

17.  The  reasons  why  this  power  of  impeachment  was  given  to 
the  senate  are  fully  discussed  in  the  Federalist,  and  in  Story  on  the  36,  37. 
Const.,  and  Rawle  on  the  Const.  Story’s  Const.,  § 743-775,  and 
notes.  The  interest  of  the  vice-president  is  supposed  to  disqualify  Where  are 
him.  Story’s  Const.,  § 777.  For  the  action  of  the  senate  upon  the impeach- 
impeachment  see  the  journal  or  record  of  the  senate  on  trials  of  STe  found? 
impeachment,  from  March  4,  1780,  to  March  3,  1851 : 1.  On  the 
trial  of  William  Blount,  a senator  of  the  United  States,  from  „ 
December  17,  1798,  to  January  15,  1799;  2.  On  the  trial  of  John 
Pickering,  Judge  of  the  New  Hampshire  District,  from  March  3, 

1803,  to  March  12,  1803;  3.  On  the  trial  of  Samuel  Chase,  one  of 
the  Associate  Justices  of  the  Supreme  Court  of  the  United  States, 
from  November  30,  1804,  to  March  1,  1805.  The  preceding  cases 
will  be  found  as  an  appendix  to  the  third  volume  of  the  Legisla- 
tive Journal  of  the  Senate;  4.  On  the  trial  of  James  H.  Peck, 

Judge  of  the  Missouri  District,  from  May  11,  1830,  to  May  25, 

1830 ; and  from  December,  13,  1830,  to  January  31,  1831.  The 


82 


IMPEACHMENT,  39,  40.  [Art.  I.,  Sec.  3,  4. 


proceedings  in  this  case  will  be  found  as  an  appendix  to  the  Legis- 
lative Journal  of  the  Senate  of  1830,  1831,  and  also  in  volumes 
called  Peck’s  Trial,  Blount’s  Trial,  Pickering’s  Trial,  and  Chase’s 
27, 191, 194.  Trial.  Por  the  mode  of  trial  in  cases  of  impeachment,  see  Story’s 
Const.,  § 807-810;  2 Woodeson’s  Lect.,  40,  p.  603,  604;  Jeffer- 
son’s Manual,  § 53. 

What  is  the  The  form  of  oath  adopted  by  the  Senate  in  Chase’s  case  was  as 
Senator^6  ^°^ows : “You  solemnly  swear  or  affirm,  that  in  all  things  apper- 

ena  ors . Gaining  to  the  trial  of  the  impeachment  of , you  will  do 

impartial  justice  according  to  the  Constitution  and  laws  of  the 
United  States.”  (Chase’s  Trial,  vol.  1,  p.  12.)  Report  upon  the 
impeachment  of  the  President,  62. 

What  is  the  The  question  in  Pickering’s  Case  was  : “Is  John  Pickering,  dis- 
question  ? trict  ju(jge  0f  the  district  of  New  Hampshire,  guilty  as  charged  in 

the article  of  the  impeachment  exhibited  against  him  by  the 

House  of  Representatives  ?”  Annals  2d  Session  8th  Cong.  364.  In 

Chase’s  trial  it  was  : “ Mr. , how  say  you ; is  the  respondent, 

Samuel  Chase,  guilty  or  not  guilty  of  a high  crime  or  misdemeanor, 
as  charged  in  the  article  of  impeachment?”  Ibid  2d  Session  8th 
Congress,  564.) 


What  is  the  [7. 1 Judgment  in  cases  of  impeachment  shall  not 

judgment  in 
impeach- 
ment? 


328. 


What  means 
judgment? 
27,  39. 

149. 

191,  194. 

Can  the 
judgment  be 
short  of  re- 
moval ? 


How  far  does 
the  sentence 
extend  ? 


extend  further  than  to  removal  from  office,  and  dis- 
qualification to  hold  or  enjoy  any  office  of  honor,  trust, 
or  profit,  under  the  United  States ; but  the  party  con- 
victed shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment,  according  to 
law. 

40.  Judgment  here  means  the  conclusion  of  law  from  the 
facts  found  upon  the  charges  preferred  by  the  House.  In  the  trial 
of  Judge  Peck  for  having  disbarred  a lawyer,  the  defepce  was 
mainly  rested  upon  the  right  of  the  court  to  punish  for  contempt, 
and  the  want  of  malice  in  the  judge.  Peck’s  Trial.  Some  have 
questioned  whether  if  the  defendant  be  found  guilty,  the  judgment 
can  be  less  than  removal  from  office.  Story’s  Const.  803.  Shall  not 
extend  further , does  not  mean  shall  not  exceed  or  fall  short , but  be 
exactly  removal  and  disqualification , and  nothing  else.  Farrar,  p. 
434.,  note  1. 

In  England  the  punishment  extends  to  the  whole  punishment 
attached  by  law  to  the  offense.  (Comyn’s  Dig.  Parliament,  L.  44 ; 
2 Woodeson,  Lect,  40.  p.  611-614),  Story’s  Const.,  § 784.  The 
sentence  is  limited  to  political  punishment,  and  the  party  left  to  a 
trial  for  the  criminal  violation  of  the  law  by  a jury.  Story’s  Const. 
§ 786. 

Disqualification. — The  punishment  touches  neither  his  person 
nor  property ; but  simply  divests  him  of  his  political  capacity. 
Mr.  Bayard,  Blount’s  trial,  47-68,  Phila.,  1799.  Id.  82.  Story’s 
Const.,  § 803. 


Cl.  6,  7,  1,  2.] 


ELECTIONS,  41. 


88 


Sec.  4.  [1.]  The  times,  places,  and  manner  of  hold-  who  pr& 
ing  elections  for  senators  and  representatives,  shall  be  tiras  and9 
prescribed  in  each  State  by  the  legislature  thereof ; but  elections? 
the  Congress  may  at  any  time  by  law  make  or  alter  it 
such  regulations,  except  as  to  the  places  of  choosing  is 
senators. 

41 . When  the  legislature  of  a State  has  failed  to  “ prescribe  the  what  is  the 
times,  places,  and  manner”  of  holding  elections,  as  required  bvPowerofthe 
the  Constitution,  the  governor  may,  in  case  of  a vacancy,  in  his  g°vernor  ? 
writ  of  election,  give  notice  of  the  time  and  place  of  election ; but 
a reasonable  time  ought  to  be  allowed  for  the  prom  ulgation  of  the 
notice.  Hoge’s  Case,  Cl.  & Hall,  135. 

This  power  of  Congress  has  only  been  exercised  so  far  as  to  How  far  has 
require  the  States  to  elect  by  districts,  by  the  act  of  1842,  ch.  47.  this  power 
(See  Barnard’s  Protest,  in  December,  1843,  and  the  debates  of  that  ^en°e|^.sa 
session,)  and  the  election  of  Senators  already  referred  to.  These  Cised? 
acts  relate  to  the  manner  of  elections,  and  the  places  so  far  as  the  30 
legislative  halls  are  concerned  in  the  election  of  senators.  There 
are  those  who  contend  that,  under  this  power,  the  general  powers,  274, 275. 
and  the  thirteenth  and  fourteenth  amendments,  and  the  general  What  is 
frame-work  of  the  government,  Congress  may  determine  who  shall  by 
vote  at  the  elections  for  representatives;  but  whatever  may  be  and  manner? 
said  of  other  powers,  the  more  settled  opinion  seems  to  be,  that 
the  times  relate  to  the  days,  the  places  to  the  precincts  for  voting,  274-279. 
and  the  manner  to  the  viva  voce  or  ballot  system,  and  the  regula- 16-18. 
tions  for  conducting  the  elections. 

When  Congress  legislates  on  these  points,  the  legislative  “ regu-  whatis  the 
lations ,”  (which  relate  back  to  those  three  things)  will  cease,  power  of 
Congress  only  has  a superintending  control.  1 Story’s  Const.  § ^y^he3 
815-828.  It  cannot  be  said,  with  any  correctness,  that  Congress  subject? 
can,  in  any  way,  alter  the  rights  or  qualifications  of  voters.  1 
Story’s  Const.,  § 820.  But  it  was  argued  differently  by  those  who  17  is. 
opposed  the  ratification  of  the  Constitution.  Little  was  said  in 
the  Conventions.,  The  Federalist,  Nos.  59,  60 ; 1 Elliot’s  Debates, 

45-44,  67  68 ; 3 Id.  65.  The  Editor  would  say  that  the  practice  ol  33^  * 

the  States  as  to  inappropriate  times,  the  vacancies  which  exist 
when  sessions  are  called,  and  the  experience  in  regard  to  secession 
and  rebelliou  render  expedient  that  Congress  should  fix  upon  some 
rule  of  uniformity. 

As  to  the  place  of  “ choosing  senators.”  This  means  that  Con-  30 
gress  shall  not  say  where  the  legislature  shall  sit.  Story’s  Const., 

§ 828,  note  2.  The  arguments  of  those  who  contend  for  the  power  17,  18. 
of  Congress  to  determine  who  may  vote,  and  who  shall  not  be  dis- 
franchised, have  been  presented  by  Mr.  Farrar,  § 124-141.  It  is 
now  one  of  the  irritating  questions. — Ed. 

[2.]  The  Congress  shall  assemble  at  least  once  inwhatare 
every  year : and  such  meeting  shall  be  on  the  first  of  Congress? 


84 


SESSIONS— QUALIFICATIONS,  42,  46.  [Art.  I.,  Sec.  5, 


833. 


When 
expire  ? 

Act  of  22 
Jan.,  1867. 

14  St.  378. 

When  are 
the  times  of 
meetings  ? 


When  and 
for  how 
long? 

333. 


What  are 
the  powers 
of  each 
House  ? 

334. 

348. 


What  are 
election  re- 
turns and 
qualifica- 
tions ? 

16-13,  29,  30, 
41. 


The  returns? 


What  of  the 
qualifica- 
tions? 

19,  41,  35, 

335. 


Monday  in  December,  unless  they  shall  by  law  appoint 
a different  day. 

42.  The  constitutional  term  of  Congress  does  not  expire  until 
twelve  o’clock  at  noon  on  the  4th  of  March.  1 1 Stat.  Appendix  ii. 

43.  “ In  addition  to  the  present  regular  times  of  the  meeting  of 
Congress,  there  shall  be  a meeting  of  the  Fortieth  Congress  of  the 
United  States,  and  of  each  succeeding  Congress  thereafter,  at 
12  o’clock  meridian,  on  the  fourth  day  of  March,  the  day  on  which 
the  term  begins  for  which  the  Congress  is  elected,  except  that 
when  the  fourth  of  March  occurs  on  Sunday,  then  the  meeting 
shall  take  place  at  the  same  hour  on  the  next  succeeding  day.” 

So  that  each  Congress  is  now  divided  into  three  sessions : The 

first  commences  on  the  fourth  day  of  March,  and  may  continue 
its  session  until  the  first  Monday  in  December ; the  second  com- 
mences on  the  first  Monday  in  December,  and  may  continue  until 
the  next  first  Monday  in  December ; the  third  commences  on  the 
first  Monday  in  December,  and  must  adjourn  on  the  next  fourth 
day  of  March,  by  the  dissolution  of  the  Congress. 

Sec.  V. — [1.]  Each  house  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  mem- 
bers ; and  a majority  of  each  shall  constitute  a quorum 
to  do  business ; but  a smaller  number  may  adjourn 
from  day  to  day,  and  maybe  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and 
under  such  penalties,  as  each  house  may  provide. 

44.  The  elections  in  a general  sense,  means  the  right  to  deter- 
mine who  has  been  chosen  by  the  “ qualified  electors  ” at  the 
“times  and  places”  and  returned,  according  to  “the  regulations” 
prescribed  by  the  laws  of  the  States  or  by  Congress  wherein  they 
shall  have  been  superseded.  Each  case  usually  depends  upon  its 
own  facts;  and  the  object  generally  has  been  to  ascertain  who 
has  received  the  highest  number  of  lawful  votes.  The  necessity 
and  importance  of  this  power  discussed.  Story’s  Const.  § 833. 

45.  The  returns  from  the  State  authorities  are  prima  facie  evi- 
dence only  of  an  election,  and  are  not  conclusive  upon  the  house. 
Spaulding  v.  Mead,  Cl.  & Hall,  16,18,  29,  30,  41,  157;  Reed  v. 
Cosden,  Id.  353.  And  the  refusal  of  the  executive  of  a State  to  grant 
a certificate  of  election,  does  not  prejudice  the  right  of  one  who 
may  be  entitled  to  a seat.  Richard’s  Case.  Id.  95. 

46.  The  “qualifications,”  in  its  narrower  sense,  would  doubt- 
less relate  to  the  age , citizenship , and  irtfbabitancy  of  the  applicant 
as  defined  in  the  second  clause  of  section  2,  art.  1,  and  the  third 
clause  of  section  three  of  the  same.  But  as  the  term  “ person,”  if 
taken  alone,  in  botW*  might  include  a female,  a lunatic  or  an  idiot,  a 
convicted  felon,  a person  of  notoriously  bad  character,  or  actually 


01.  1.] 


QUALIFICATIONS,  46. 


85 


at  war  with  the  United  States,  as  during  the  rebellion,  or  one 
coming  from  a State  all  of  whose  inhabitants  are  at  war  with 
the  United  States,  the  term  “ qualifications ” has,  in  practice,  275,  279. 
received  a more  enlarged  signification.  Thus  in  the  case  of  Mr. 

Niles,  in  1846,  a committee  was  raised,  in  the  senate,  to  inquire 
into  his  mental  capacity;  the  rebellion  has  caused  a test  oath, 
which  might  reach  persons  in  all  the  States,  and  does  embrace  242. 

majorities  in  some  of  them;  a concurrent  resolution  was  passed  70. 

in  1866,  in  regard  to  the  States  lately  in  rebellion,  which,  it  was 
urged,  limited  this  independent  power  of  each  house;  the  four- 
teenth amendment  of  the  Constitution  looks  to  a new  disqualified - 275-279. 
tion , and  all  the  reconstruction  acts,  it  has  been  argued,  intrench 
upon  this  right.  At  the  time  of  this  writing  one  committee  is 
investigating  the  subject  of  the  disqualifications  of  certain  mem- 
bers from  Kentucky,  and  another  the  question  as  to  whether 
Maryland  has  a *“ republican  form  of  government”  within  the  233. 
meaning  of  the  Constitution. 

It  may  be  pretty  strongly  inferred  from  messages  and  speeches 
of  President  Johnson,  and  certainly  it  has  been  very  clearly 
expressed  by  some  of  the  opposition  statesmen  in  the  senate  and 
house,  that  after  the  acts  of  reconstruction,  that  is,  the  formation 
of  amended  constitutions  and  elections  under  the  proclamations  of 
the  President,  the  “ persons  ” so  chosen  were  entitled  to  their  seats 
without  any  superadded  “ qualifications  ” to  those  prescribed  in  this  277-279. 
section,  except  the  fact  that  they  are  “loyal  men  from  loyal 
States.” 

But  the  statesmen  of  the  majority  argue,  that  while  these  States 
and  these  very  members  elected  and  returned , and  the  great  bodies 
of  their  constituents  were  claiming  to  be  aliens  to  the  United 
States,  and  magistrates  and  people  were  engaged  in  war  to  resist 
the  authority  of  the  government,  they  were  not  entitled  to  repre- 
sentation; and  a fortiori  they  cannot  send  members  with  the 
proper  “ qualifications ” until  the  law-making  power  shall  determine  233. 
upon  the  terms  of  restoration ; and  that,  certainly,  the  test  oath  is 
a superadded  disqualification , which  the  president’s  pardon  cannot  242. 
overcome.  On  the  other  hand,  it  has  been  argued  that,  as  that  oath  177. 
has  been  decided  to  be  unconstitutional  in  some  cases,  it  is  so  as  to  142, 143. 
members  who  are  willing  to  swear  to  support  the  Constitution ; that  242. 
the  president’s  pardon  does  remove  all  political  disabilities ; and 
therefore,  the  test  oath  cannot  apply  to  those  who  had  been  par- 
doned for  their  participation  in  the  rebellion ; and  that  the  action 
of  the  people,  under  the  authority  of  the  president,  restores  those 
States  and  the  citizens  thereof,  to  all  their  rights,  in  statu  quo  ante 
helium.  These  are  the  general  arguments,  for  and  against.  The 
whole  subject  is  a case  not  discussed  in  the  formation  of  the  Con- 
stitution ; it  is  without  precedent,  because  the  frame-work  of  our 
government  differs  from  all  others ; therefore,  the  difficult  problem  275-2S5. 
must  be  worked  out  under  its  peculiar  circumstances. 

It  is  not  within  the  plan  of  this  work  to  give  the  opinions  of  the 
Editor.  It  may  not  be  improper  to  remark,  however,  that  there 
seems  to  be  more  difference  as  to  who  shall  accomplish  the  work  of 
restoration  than  what  shall  be  done  to  accomplish  it.  All  seem  to 


I 


r 


■ * 

86  QUALIFICATIONS — CONTEMPTS,  46-48.  [Art.  I.,  Sec.  5, 

Seceded  agree  that  there  was  a time  when  the  seceded  States  could  not 

States.  properly  send  members,  even  though  such  members  possessed  the 

constitutional  qualifications ; yet  upon  this  the  Constitution  is  silent. 
So  the  words  disloyalty  and  loyalty  are  not  in  it.  Necessity  had  to 
determine  that  those  at  war  with  the  government  could  not  vote  on 
the  question  of  supplies.  But  the  time  when,  the  power  which , and 
the  questions  how  and  to  whom  political  rights  shall  be  restored  or 
given,  and  indeed  how  far  they  are  lost,  are  the  matters  of  differ- 
ence. Of  course  the  actors  in  the  drama,  who  believe  that  the 
ordinances  of  secession  made  the  seceding  States  foreign  and  inde- 
pendent nations,  and  all  the  citizens  who  remained  therein  aliens, 
209.  and  during  the  war  alien  enemies;  that  the  “ Confederate  States  ” 
became  a lawful  belligerent  power,  which  was  only  forced  “to  yield 
to  superior  numbers  and  means,”  have  a kind  of  estoppel  in  limine , 
for  which  there  is  no  other  answer  than  that  the  friends  of  the 
United  States  held  and  have  established  the  opposite  theory. 

The  great  misfortune  in  this  and  all  political  controversies  is, 
that  in  discussions  men  neither  weigh  well  nor  define  their  words. 

I can  only  pray  that,  in  future  editions,  facts  and  precedents  may 
enable  the  Editor  to  give  the  exact  signification  of  terms. 

Whatarethe  [2.]  Each  house  may  determine  the  rules  of  its  pro- 
^chTouse?  ceedings,  punish  its  members  for  disorderly  behavior, 
349-351.  and,  with  the  concurrence  of  two-thirds,  expel  a 
member. 


Where  are 
the  rules  to 
be  found  ? 

349. 


47.  The  “ Rules’'  will  be  found  in  “Jefferson’s  Manual,”  and 
in  the  published  manuals  of  each  house.  See  Barclay’s  Digest ; 
the  standing  rules  printed  by  Francis  Childs,  in  1795  Jefferson’s 
Manual ; Dwarris  on  Statutes,  291 ; Hastel’s  Precedents ; May’s 
Treatise  upon  the  Law,  &c.,  of  Parliament ; Cushing’s  Rules  of 
Proceeding,  Debate,  &c.  Ail  these  works  should  be  carefully 
studied  by  leading  and  efficient  members  of  Parliamentary  bodies. 
1 Kent’s  Com.  238,  and  notes  to  11th  edition,  where  will  be  found 
an  epitome  of  the  rules. 


What  is  the  48.  This  does  not  exclude  the  power  to  punish  for  contempts 
power  as  to  others  than  members  of  the  house.  The  Constitution  says  nothing 
con  emp  s . ^ contempts>  These  were  left  to  the  operation  of  the  common  law 
principle,  that  all  courts  have  a right  to  protect  themselves  from 
insult  and  contempt,  without  which  right  of  self-protection,  they 
could  not  discharge  their  high  and  important  duties.  Nugent’s 
Case.  1 Am.  L.  J.  139;  Anderson  v.  Dunn,  6 Wh.  204;  1 Story’s 
*50-  Const.  §§  845-9 ; Bolton  v.  Martin,  1 Dali.  296  ; Sam.  Houston’s 
Case,  11  vol.  of  Benton’s  Condensed  Debates,  pp.  644,  658,  where 
the  whole  case  for  striking  Stanberry  for  words  spoken  in  debate  is 
given.  This  was  a contempt  not  committed  in  the  presence  of  the 
House,  but  upon  the  avenue,  for  words  spoken  and  published. 
Houston  was  not  a member  of  the  House,  and  was  punished  by 
reprimand.  Punishment  for  a breach  of  privilege  should  only  be 
inflicted  incases  of  strong  necessity.  (Jarvis’s  Case,  and  Randolph 
& Whitney’s  Case);  Houston’s  Case,  11  Benton’s  Debates  658. 


4 


Cl.  2,  3.]  CONTEMPTS — EXPULSION,  49,  50,  51. 


87 


Whatever  may  have  a tendency  to  impair  the  freedom  of  debate,  or  Defined, 
to  detract  from  the  independence  of  the  representatives  of  the 
people,  is  a breach  of  privilege.  Id.  669.  See  the  question  dis- 
cussed. Jefferson’s  Manual ; Tucker  Blackstone  App.  note  200, 

205  ; 1 Story  on  the  Const.  § 845-850,  3 ed. 

49.  It  seems  to  be  settled  that  a member  may  be  expelled  for  For  what 
any  misdemeanor  which,  though  not  punishable  by  any  statute,  is  “a7  1 a mem- 
inconsistent  with  the  trust  and  duty  of  a member.  Blount’s  Case,  Peiied?eX" 

1 Story’s  Const.  § 838 ; Smith’s  Case,  1 Hall’s  L.  J.  459  ; Brooks’ 

Case,  for  assaulting  Senator  Sumner  in  the  Senate  Chamber,  for  193,  194. 
words  spoken  in  debate.  It  extends  to  all  cases  where  the  offense 
is  such,  as  in  the  judgment  of  the  House,  unfits  him  for  parliamen-  351. 

tary  duties.  (1  Bl.  Com.  163;  Id.  Christian’s  note,  167;  Bex.  v.  352* 

Wilkes,  2 Wilson’s  R.  251 ; Com.  Dig.  Parliament  a.  5 ; 1 Hall’s 
Law  Journ.,  459,  466).  1 Story’s  Const.  § 838. 

The  Sergeant-at-arms  has  no  authority  to  arrest  by  deputy.  F. 

B.  Sandborn’s  Case,  1 Kent’s  Com.  11  ed.  236,  note  2. 

The  power  to  punish  for  contempt  is  inherent  in  all  legislative  Whence  are 
assemblies.  1 Kent’s  Com.  236.  This  has  been  denied  in  Eng-  the  powers 
land.  (Kelly  v.  Carson,  4 Moore  Privy  Council;  63  Fenton  v.  derlved? 
Hampton,  11  Id.  347).  Id.;  Rex  v.  Flower,  8 T.  314;  Yates  v. 

Lansing,  9 John.  417.  And  see  1 Story’s  Const.  3d  ed.  § 845, 

850,  and  his  notes  which  exhaust  the  authorities. 

William  Blount  was  expelled  for  an  attempt  to  seduce  an  United  193,  194 
States  interpreter  from  his  duty,  and  to  alienate  the  affections  and 
confidence  of  the  Indians  from  the  public  officers  residing  among 
them,  &c.  (Journals  of  the  Senate,  8th  July,  1797  ; Serg.  Const. 

Ch.  28,  p.  286),  Story’s  Const.  § 804. 

50.  On  the  14th  March,  1861,  the  Senate  passed  the  following  who  were 
resolution : “ Whereas  the  seats  of  Albert  G.  Brown  and  Jefferson  expelled  for 
Davis  of  Miss.,  Stephen  R.  Mallory  of  Florida,  Clement  C.  Clay,  ^nTnthe 
jr.  of  Ala.,  Robt.  Toombs  of  Ga.,  and  Judah  P.  Benjamin  of  rebellion? 
Louisiana,  having  become  vacant:  Therefore,  Resolved,  that  the 
Secretary  be  directed  to  omit  their  names  respectively  from  the  353. 
roll.”  Senate  Journal,  14  March,  1861.  Jesse  D.  Bright  of  Indiana, 

was  also  expelled  for  treasonable  correspondence  with  Jefferson 
Davis.  Senate  Journal,  1 March,  1861. 

[3.]  Each  house  shall  keep  a journal  of  its  proceed- what  is  the 
mgs,  and  from  time  to  time  publish  the  same,  except-  Journals0? 
ing  such  parts  as  may,  in  their  judgment,  require 
secrecy ; and  the  yeas  and  nays  of  the  members  of  Teas  and 
either  house,  on  any  question,  shall,  at  the  desire  of  nays' 
one-fifth  of  those  present,  be  entered  on  the  journal. 

51.  The  object  is  to  ensure  publicity.  Story’s  Const.  § 840.  What  is  the 

These  journals  have  been  published  in  various  editions  and  are  object  of  the 
valuable  sources  of  information.  journal  ? 


88 


COMPENSATION,  51-55.  [Art.  I.,  Sec.  5,  6. 


Yeas  and  “ Yeas  and  Nays  ” are  simply  a call  for  the  record  of  each  mem- 
nays  ? ber’s  vote  upon  the  questions  stated  by  the  Speaker. 

state  the  [4.]  Neither  House,  during  the  session  of  Congress, 
adjourn-  shall,  without  the  consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that 
in  which  the  two  houses  shall  be  sitting. 


What  is  the  52.  This  places  Congress  independent  of  the  President,  except 

object  of  the  in  cases  of  disagreement.  Story’s  Const.  § 843. 
power  ? 

How  of  Sec.  VI. — [1.]  The  Senators  and  Representatives 
compensa-  receive  a compensation  for  their  services,  to  be 

ascertained  by  law,  and  paid  out  of  the  treasury  of  the 
United  States.  They  shall,  in  all  cases,  except  treason, 
Privileges  ? felony,  and  breach  of  the  peace,  be  privileged  from 
arrest,  during  their  attendance  at  the  session  of  their 
respective  houses,  and  in  going  to,  and  returning  from 
the  same ; and  for  any  speech  or  debate  in  either 
House,  they  shall  not  be  questioned  in  any  other 
place. 


What  is  the  53.  Compensation. — The  rate  of  compensation  or  pay  has  been 
compensa-  several  times  increased  to  meet  the  exigencies  of  the  diminished 
hers?  mem'  value  of  money.  1 Story’s  Const.  § 858.  It  is  now  five  thousand 
dollars  per  annum  for  the  Senators  and  Representatives,  and  eight 
thousand  dollars  for  the  Speaker ; and  twenty  cents  a mile,  by  the 
nearest  usually  traveled  route.  14  St.  p.  323  § 17. 

The  members  of  the  British  Parliament  receive  no  compensation. 
(1  Blackst.  Com.  174,  and  Christian’s  note  34);  Story’s  Const. 
§ 853.  The  subject  is  one  on  which  there  was  much  division  in 
the  Convention.  (Journal  of  the  Convention,  67,  116-119,  142-151 ; 
2 Elliot’s  Debates.  279,  280;  4 Elliot’s  Debates,  92-99.  The 
reasons  for  and  against  discussed.  Rawle  on  the  Const,  ch.  18,  p. 
179);  Story’s  Const,  § 854-858.  See  Confederation,  ante  Art.  V., 

p.  11. 

How  fixed?  54.  “To  be  ascertained  by  law,”  removes  the  subject  from 
And  why?  the  pride  and  parsimony,  the  local  prejudices  and  local  habits  of  any 
63*  section  of  the  Union.  (3  Elliot’s  Debates,  279.)  Story’s  Const. 
§ 857. 


What  are 
their  privi- 
leges ? 

43. 


55  This  Privilege,  which  means  freedom  from  arrest,  has  be- 
longed to  all  legislative  bodies  on  the  Continent,  and  immerao- 
rially  to  the  English  Parliament.  (1  Black.  Com.  164,  165; 
Com.  Dig.  Parliament  D.  17;  Jefferson’s  Manual,  § 3,  Privilege ; 
Benyon  v.  Evelyn,  Sir  0.  Bridge.  R.  334.)  1 Story  on  Const.  § 


Cl.  4,  1.] 


PRIVILEGE— ARREST,  55-61. 


89 


859.  It  could  not  be  surrendered  without  endangering  the  public 
liberties,  as  well  as  the  private  independence  of  the  members. 

(1  Kent’s  Com.  Lect.  11.  Bolton  v.  Martin,  Dallas  296.  Coffin  v. 

Coffin,  4 Mass.,  R.  1)  Story’s  Const.  § 869.  See  Ante  Art.  V.,  p.  1 1. 

It  is  not  merely  the  privilege  of  the  member  or  his  constituents, 
but  the  privilege  of  the  House  also.  And  every  man  must  at  his 
peril  take  notice  who  are  the  members  of  the  house  returned  of 
record.  (4  Jefferson’s  Manual,  4),  1 Story’s  Const.  § 860. 

56.  “Treason,  Felony,  or  Breach  of  the  Peace.”  This  From  what 
would  seem  to  extend  to  all  indictable  offenses,  as  well  those  which  offences? 
are  in  fact  attended  with  force  and  violence,  as  those  which  are 

only  constructive  breaches  of  the  peace  of  the  government,  inas- 
much as  they  violate  its  good  order.  1 Bl.  Com.  166;  1 Story’s  192,191 
Const.  § 865.  The  words  were  borrowed  from  the  common  law, 

14  Inst.  25  ; 1 Black.  Com.  165  ; Com.  Dig.  Parliament  D.  Breaches 
of  the  peace  include  libels.  Rex  v.  Wilkes,  2 Wilson’s  R»  151.) 

Story’s  Const.  § 865. 

57.  Arrest.  They  are  privileged  not  only  from  arrest,  both  on  From  what 
judicial  and  mesne  process,  but  also  from  the  service  of  a summons  arrest^  privi- 
or  other  civil  process,  while  in  attendance  on  their  public  duties.  iege  ' 
Geyer’s  Lesse  v.  Irwin,  4 Dali.  107  ; Nones  v.  EdsalL,  1 Wall.  Jr. 

191;  1 Story’s  Const.  § 860;  Coxe  v.  McClenachan,  3 Dali.  478. 

Jefferson’s  Manual,  § 3 and  4. 

The  privilege  is  personal  and  does  not  extend  to  servants  or 
property.  It  is  .only  for  a reasonable  time,  eundo,  morando , et  ad 
propria  redeundo.  (Holliday  v.  Pitt,  2 Str.  R.  985 ; S.  C.  Cas. 

Temp.  Hard.  28;  1 Black.  Com.  165,  Christian’s  note  21;  Barnard 
v.  Mordaunt,  1 Kenyon  R.  125 ; 4 Jeff.  Manual,  § 3);  Story’s  Const. 

§ 861,  862,  864. 

5§.  The  effect  of  the  arrest  is,  that  it  is  a trespass  ab  initio , What  is  the 
actionable  and  indictable,  and  punishable  as  a contempt  of  the  house.  eff^ct  of  the 
(1  Black.  Com.  164-166;  Com.  Dig.  Parliament  D.  17;  Jefferson’s  airest  • 
Manual,  § 3.)  Story’s  Const.  § 863.  The  member  may  also  be  dis- 
charged by  motion  to  a court  of  justice,  or  upon  a writ  of  habeas  cor- 
pus. (Jefferson’s  Manual,  §3;  2#Str.  990;  2 Wilson’s  R.  151; 

Cas.  Temp.  Hard.  28).  1 Story’s  Const.  § 863. 

59.  The  privilege  from  arrest  commences  from  the  election  and  When  does  it 
before  the  member  takes  his  seat  or  is  sworn.  (Jefferson’s  Manual,  commence? 
§ 3 ; but  see  Comyn’s  Dig.  Parliament  D.  17.)  Story’s  Const.  § 864. 

69.  One  who  goes  to  Washington  duly  commissioned  to  repre-  In  whose  fa 
sent  a State  in  Congress,  is  privileged  from  arrest,  eundo1  morando  et vor? 
redeundo;  and  though  it  be  subsequently  decided  by  Congress,  that 
he  is  not  entitled  to  a seat  there,  he  is  protected  until  he  reaches 
home,  if  he  return  as  soon  as  possible  after  such  decision.  Dunton 
v.  Halstead,  4 Penn.  L.  J.  237. 

61.  “And  for  any  speech  or  debate  in  either  house  they  What  is  free 

SHALL  NOT  BE  QUESTIONED  IN  ANY  OTHER  PLACE.”  dom^of  de- 

This  secures  the  freedom  of  debate.  (2  Wilson’s  Law  Sect.  156 ; 246,  247. 

1 Black.  Com.  164,  165.)  Story’s  Const.  § 866. 

11 


90  PRIVILEGE,  61,  62,  63.  [Art.  I.,  Sec.  6,  7, 

But  this  privilege  is  strictly  confined  to  words  spoken  in  the! 
course  of  parliamentary  proceedings,  and  does  not  cover  things  done 
bfeyond  the  place  and  limits  of  duty.  (Jefferson’s  Manual,  § 3) 
Story’s  Const.  866. 

The  privilege  does  not  cover  the  publication  of  the  speech  by  the 
member.  (The  King  v.  Creevy,  1 Maule  and  Selw.  273.  Coffin  v. 
Coffin,  4 Mass.  R.*.l)  But  see  Houston’s  Case  (Doddridge  and  Bur- 
gess Speeches  in  1832).  Story  on  Const.  § 866. 


From  what  [2.]  DST o senator  or  representative  shall,  during  the 
sSatorTand  time  for  which  he  was  elected,  be  appointed  to  any  civil 
tfvesexciud-  office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof 
shall  have  been  increased,  during  such  time ; and  no 
person  holding  any  office  under  the  United  States,  shall 
be  a member  of  either  house  during  his  continuance  in 
office. 

How  does  62.  The  acceptance  by  a member  of  any  office  under  the  United 
the  accept-  states,  after  he  has  been  elected  to,  and  taken  his  seat  in  congress, 
office  vacate  operates  as  a forfeiture  of  his  seat.  Van  Ness’s  Case,  Cl.  & Hall, 
another?  122;  Yell’s  Case  in  1846-7.  Yell  had  been  elected  a volunteer 
colonel  in  Arkansas,  and  marched  to  Mexico.  He  did  not  resign ; 
but  the  governor  ordered  an  election,  and  Newton  was  elected,  and 
served  out  the  term.  Continuing  to  execute  the  duties  of  an  office 
25.  under  the  United  States,  after  one  is  elected  to  Congress,  but  before 
he  takes  his  seat,  is  not  a disqualification,  such  office  being  resigned 
prior  to  the  taking  of  the  seat.  Hammond  v.  Herrick,  Cl.  & Hall, 
287;  Earle’s  Case,  Id.  314;  Mumford’s  Case,  Id.  316. 

A person  holding  two  compatible  offices  or  employments  under 
25.  the  government  is  not  precluded  from  receiving  the  salaries  of  both. 
&c.  (Converse  v.  The  United  States,  21  How.  463.)  9 Op.  508. 


What  is  the 
effect  of 
holding  in- 
compatible 
offices  ? 


25. 


*Vhere  must 
originate  re- 
venue bills? 


65.  “ During  the  time  for  which  he  was  elected”  does  not 
reach  the  whole  evil.  (Rawle  on  the  Const,  ch.  19,  p.  184;  1 
Tucker’s  Black.  App.  375.)  Story’s  Const.  867,  868. 

A collector  cannot,  at  the  same  time,  hold  the  office  of  inspector 
of  customs  and  claim  compensation  therefor.  Stewart  v.  The  United 
States,  17  How.  116. 

On  the  acceptance  and  qualification  of  a person  to  a second  office, 
incompatible  with  the  one  he  is  then  holdiug,  the  first  office  is  ipso 
facto  vacated.  (The  People  v.  Carrique,  2 Hill,  93.)  It  operates 
as  an  implied  resignation ; an  absolute  determination  of  the  original 
office.  (Rex  v.  Trelawney,  3 Burr,  1616;  Millward  v.  Thatcher,  2 
T.  R.  87 ; Wilcock  on  Municipal  Corp.  240,  617  ; Ang.  & Ames 
on  Corp.  255.)  Paschal’s  Annotated  Digest,  note  200,  p.  67  ; Bien- 
court  v.  Parker,  27  Tex.  262. 

Sec.  VII. — [1.]  All  bills  for  raising  revenue  shall 


U.  1,  2.] 


EE  VENUE,  VETO,  64,  65. 


91 


originate  in  the  house  of  representatives;  but  the 
senate  may  propose  or  concur  with  amendments,  as  on 
other  bills. 

64,  This  is  copied  from  a rule  governing  the  English  Parlia-  What  are 
ment.  Story’s  Const.  § 864.  The  reason  is  that  the  commons  or  hills? 
members  of  the  house  are  the  immediate  representatives  of  the 
people.  Id.  Bills  are  the  forms  of  enactments  before  they  are  acted 

upon  by  the  house.  Those  for  raising  revenue  are  generally  framed 
upon  the  estimate  of  the  heads  of  departments. 

65.  Revenue.  That  which  returns  or  is  returned;  a rent,  What  is  rev* 
(reditus);  income;  annual  profit  received  from  lands  or  other  pro- enue? 
perty.  (Cowell).  Burrill’s  Law  Die.  Revenue. 

Here  it  means  what  are  technically  called  “ money  bills.”  Story’s 
Const.  § 874.  In  practice  it  is  applied  to  bills  to  levy  taxes  in  the 
strict  sense  of  the  word.  (2  Elliot’s  Debates,  283,  284).  Story’s 
Const.  § 880.  And  see  1 Tucker’s  Blacks.  App.  261. 

[2.]  Every  bill  which  shall  have  passed  the  house  of  What  is  the 
representatives  and  the  senate,  shall,  before  it  become  passing 
a law,  be  presented  to  the  President  of  the  United  KuVb? 
States ; if  he  approve,  he  shall  sign  it,  but  if  not,  he  165. 
shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  What  of  the 
objections  at  large  on  their  journal,  and  proceed  veto  Power? 
reconsider  it.  If,  after  such  reconsideration,  two-thirds 
of  that  house  shall  agree  to  pass  the  bill,  it  shall  be 
sent,  together  with  the  objections,  to  the  other  house,  How  over- 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap-come 
proved  by  two-thirds  of  that  house,  it  shall  become  a 354. 
law.  But  in  all  such  cases  the  votes  of  botih  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be 
entered  on  the  journal  of  each  house  respectively.  If 
any  bill  shall  not  be  returned  by  the  president  within  if  the  bill 
ten  days  (Sundays  excepted)  after  it  shall  have  been  tilled ?e" 
presented  to  him,  the  same  shall  be  a law,  in  like  man- 
ner as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a law. 


92 


veto,  66,  67. 


[Art.  I.,  Sec.  7, 


When  do 
bills  take 
effect  ? 


Can  we  go 
behind  the 
record  ? 


What  is  the 
veto  power? 


Define  the 
word? 


What  are  its 
objects  ? 


74,  81. 


87. 

166. 


06.  Every  bill  takes  effect  as  a law,  from  the  time  when  it  is 
approved  by  the  president,  and  then  its  effect  is  prospective,  and 
not  retrospective.  The  doctrine  that,  in  law,  there  is  no  fraction 
of  a day,  is  a mere  legal  fiction,  and  has  no  application  in  such  a 
case.  In  the  matter  of  Richardson,  2 Story,  571 ; People  v.  Camp- 
bell, 1 Cal.  400.  But  this  is  denied  to  be  law.  In  the  matter  of 
Welman,  20  Yerm.  653  ; In  the  matter  of  Howes,  21  Id.  619. 
The  practice  of  the  presidents  has  been  not  to  approve  bills,  not 
signed  by  the  presiding  officers  before  their  actual  adjournment. 

We  cannot  go  behind  the  written  law.  An  act  of  Congress 
examined  and  compared  by  the  proper  officers,  approved  by  the 
president  and  enrolled  in  the  Department  of  State,  cannot  after- 
wards be  impugned  by  evidence  to  alter  and  contradict  it.  9 Op. 
2,3. 

67.  This  returning  of  the  bill  commonly  called  the  “ veto 
power,”  is  simply  the  negative  power  of  the  president , which  exists 
in  the  English  Parliament.  But  the  king’s  veto  or  negative  is  a 
final  disposition  of  the  bill.  1 Blacks.  Com.  154.  The  privilege  is 
a part  of  the  king’s  prerogative  never  exercised  since  1692;  1 
Kent’s  Com.  226-229  ; De  Lolme  on  Const,  ch.  17,  p.  390,  391. 

“Veto;”  I (forbid ]j|the  word  by  which  the  Roman  tribunes 
expressed  their  negative  against  the  passage  of  a law  or  other  pro- 
ceeding, which  was  also  called  interceding,  {inter cedere).  (Adams’ 
Roman  Ant.  13,  145,  146.)  BurrilTs  Law  Die.  Veto.  And  see  1 
Wilson's  Law  Lect.  448,  449;  the  Federalist,  No.  51,  69,  73;  Rawle’s 
Const.  Ch.  6,  p.  61,  62 ; Burke’s  letter  to  the  Sheriffs  of  Bristol  in 
1777,  for  the  reasons  why  the  exercise  has  been  forborne. 

It  is  intended  as  a defence  of  the  executive  authority,  and  also  as 
an  additional  security  against  rash,  immature,  and  improper  laws.* 
Idem,  and  Story’s  Const.  § 881-893. 

The  veto  power  was  rarely  exercised  and  never  overcome  during 
the  first  forty  years  of  the  government.  (Story’s  Const.  § 888.) 

The  most  notable  instances  of  its  exercise  to  prevent  legislation, 
which  had  really  not  been  made  issues  in  the  popular  contests  for 
the  presidency,  were  the  vetos  of  President  Jackson  of  the  renewal 
of  the  charter  of  the  United  States  bank  in  1832 ; and  also  of  his 
veto  of  the  Maysville  Turnpike  road.  In  both  these  messages  the 
constitutional  power  of  Congress  was  denied. 

In  the  exciting  contest  of  1840,  the  recreation  of  a National  bank 
was  one  of  the  favorite  issues  of  the  successful  party.  But  Vice- 
President  Tyler,  having  succeeded  to  the  presidency,  after  the 
death  of  General  Harrison,  the  exercise  of  the  negative  power 
created  an  obstacle  which  could  not  be  overcome  by  a two-thirds  vote. 
Some  Internal  improvement  measures  and  the  French  Spoliation 
appropriations  were  also  defeated  by  the  negatives  of  President 
Polk.  But  the  most  notable  instances  of  the  exercise  of  the  power 
have  been  during  the  administration  of  President  Johnson. 

First,  in  1866,  the  defeat  of  what  is  called  the  “ Freedmen’s 
Bureau  bill,”  may  be  classed  among  the  measures  incident  to  his- 
tory, where  the  two-thirds  majority  could  not  be  found  to  overcome 
the  negative  of  the  executive.  But  the  passage  of  the  “Civil  Rights 
bill”  and  the  several  acts  for  the  reconstruction  of  the  rebel  states 


01.  2,  3.] 


VETO,  RESOLUTION,  67,  70. 


93 


(found  in  this  volume),  are  the  first  instances  wherein  important 
measures  have  been  passed  by  the  requisite  two-thirds  majority.  275-279. 
Aud  as  the  president  urged  the  unconstitutionally  of  the  measures, 
particularly  the  last,  the  question  of  the  duty  of  the  executive  to  see 
the  laws  faithfully  executed,  which  he  still  believes  to  be  unconsti- 
tutional, or  still  to  urge  his  objections  after  they  had  been  over- 
come, according  to  prescribed  forms,  is  for  the  first  time  before  the 
judgment  of  the  nation.  The  very  fact  that  the  measures  are  in 
regard  to  States,  which  the  president  contends  are  entitled  to  repre-  46. 
Bentation,  may  have  no  small  influence  upon  his  judgment.  Presi- 
dent’s Message,  Dec.,  1861. 

68.  “Two  Thirds.” — On  the  7th  July,  1856,  the  senate  of  the  What  is  a 
United  States  decided,  by  a vote  of  thirty-four  to  seven,  that  two-  Quorum? 
thirds  of  a quorum  only  were  requisite  to  pass  a bill  over  the  presi- 
dent’s veto,  and  not  two-thirds  of  the  whole  senate.  9 Law  Rep. 

196.  In  the  ratification  of  treaties,  it  is  expressly  provided  that 
two-thirds  of  the  senators  present  shall  concur.  And  see  Cushing’s  17a 
Law  of  Legislative  Assemblies,  § 2387  ; see  Story’s  Const.  § 891 ; 

1 Kent’s  Com.  249,  note  b. 

69.  The  president  must  receive  the  bill  ten  entire  days  before  What  of  the 
adjournment,  or  it  will  not  become  a law.  * Hyde  v.  White,  24  Tex. ten  days  ? 
143,  145 ; Paschal’s  Annotated  Dig.  note  193,  p.  62. 


[3.]  Every  order,  resolution,  or  vote,  to  which  the  what  shall 
concurrence  of  the  senate  and  house  of  representatives  to  th^presb 
may  be  necessary  (except  on  a question  of  adjourn- dent? 
ment),  shall  be  presented  to  the  President  of  the  Uni-  52. 
ted  States ; and  before  the  same  shall  take  effect,  shall 
be  approved  by  him ; or  being  disapproved  by  him,  244. 
shall  be  repassed  by  two-thirds  of  the  senate  and  house 
of  representatives,  according  to  the  rules  and  limita-  Has  he  the 
tions  prescribed  in  the  case  of  a bill.  vet°  67. 


70.  A joint  resolution  approved  by  the  president,  or  duly  Have  joint 
passed  without  his  approval,  has  all  the  effect  of  law.  But  sepa-  resolutions 
rate  resolutions  of  either  house  of  congress,  except  in  matters  ap-  f^9effectof 
pertaining  to  their  own  parliamentary  rights,  have  no  legal  effect  to 
constrain  the  action  of  the  president,  or  of  the  heads  of  depart-  46. 
ments.  6 Opin.  680. 

The  “ concurrent  resolution”  of  1866  in  reference  to  the  States 
in.  rebellion,  not  being  admitted  by  either  house,  was  not  sub- 
mitted to  the  president. 


The  reason  for  the  exception  as  to  adjournments  is,  that  this  is  a Why  the  ex- 
power peculiarly  fitted  to  be  exercised  by  the  two  houses  in  order  ception  as  to 
to  secure  their  independence  and  prompt  action.  Story’s  Const.  ment?n* 


892. 


52. 


s)4 


POWER,  TAXES,  71,  72. 


[Art.  I.,  Sec.  8, 


Sec.  VIII. — The  Congress  shall  have  power — 

71.  Power. — In  this  connection  means  authority  to  enact.  It 
is  to  be  taken  in  connection,  1,  with  the  general  declaration  of  the 
first  section,  that  “ all  legislative  power  herein  granted  shall  be 
vested  in  a Congress  of  the  United  States ;”  2,  with  the  last  clause 
in  this  section,  “ to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  thereof;5’  3,  with  the  inhibi- 
tions in  the  9th  and  10th  sections  of  this  article;  4,  with  the  IXth 
and  Xth  amendments ; 5,  with  all  the  necessary  powers  growing 
out  of  other  subjects  contemplated  by  the  Constitution. 

Although  the  powers  here  following  have  been  called  by  Mr. 
Hamilton,  Mr.  Jefferson,  Mr.  Madison,  and  almost  by  universal  cus- 
tom “enumerated  powers”  and  are  generally  divided  by  Arabic  num- 
bers into  eighteen  clauses,  yet  it  will  be  seen  by  reference  to  the 
authentic  copy  printed  from  the  original,  that,  like  the  versification 
in  the  Bible,  the  enumeration  has  been  the  work  of  printers.  Yet 
the  practice  of  calling  these  special  powers  “ enumerated  ” has  too 
long  obtained  to  ever  be  abandoned.  Hamilton:  Federalist,  Ho. 
83  ; Jefferson:  Opinion  on  the  Bank,  1781 ; Madison ; Yeto  Message 
of  1817  ; Monroe:  veto  message  of  1822  ; Farrar,  § 283-288;  Story’s 
Const.  § 981. 

The  powers  specifically  granted  to  Congress  are  what  are  called 
enumerated  powers , and  are  numbered  in  the  order  in  which  they  stand. 
(Monroe,  4th  May,  1822.)  Story’s  Const.  § 981.  Certified  copies 
of  the  Constitution  have  been  printed  by  Hickey,  Curtis,  and  Far- 
rar, and  now  by  the  author,  in  which  the  enumeration  of  articles  and 
sections  appear ; but  there  is  none  for  the  clauses.  For  convenience 
the  enumeration  of  clauses  is  retained  in  [brackets].  The  editor 
does  not  partake  of  the  belief  that  the  habit  of  calling  the  following 
powers  enumerated  has  been  a fruitful  source  of  misconstruction ; 
for  without  the  figures  every  mind  would  number  them  for  itself. 

What  are  [2.]  To  lay  and  collect  taxes,  duties,  imposts,  and 

the  powers  . . , . . 

and  objects  excises;  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but 
all  duties,  imposts,  and  excises  shall  be  uniform  through 
out  the  United  States. 

Define  tax-  72.  “ Taxes.” — Taxare.  In  the  civil  law.  To  rate  or  value. 

Calv.  Lex.  To  lay  a tax  or  tribute.  Spellman.  In  old  English 
practice,  to  assess;  to  rate  or  estimate;  to  moderate  or  lay  an 
assessment  or  rate.  Burrill’s  Law  Die.,  Tax.  A rate  or  sum  of 
money  assessed  on  the  person  or  property  of  a citizen,  by  govern- 
ment, for  the  use  of  the  nation  or  State.  (Webster.)  In  a general 
sense — any  contribution  imposed  by  government  upon  individuals, 
for  the  use  and  service  of  the  State;  whether  under  the  name  of 
toll,  tribute,  tallage,  gabel,  impost,  duty,  custom,  excise,  subsidy, 
aid,  supply,  or  other  name.  (Story,  Const.  § 472;  1 Kent’s  Com. 
254-257.  Burrill’s  Law  Die.,  Taxes  ; Tomlin’s  Law  Die.  Tax.) 


With  what 
limitations 
is  the  word 
power  to  be 
considered  ? 

14. 

41,  48. 

138. 


142, 144. 
268,  269. 

1,  148. 

Are  the  fol- 
lowing prop- 
erly enumer- 
ated powers? 

Note  p.  28, 
30. 

269. 

P.  365. 


Were  the  fol- 
lowing spe- 
cial powers 
actually 
enumerated 
in  the  origi  - 
nal draft  of 
the  constitu- 
tion ? 


es? 

22,  23. 


358. 


01,  1.] 


TAXES,  DUTIES,  IMPOSTS,  73-76. 


95 


In  a stricter  Sense — a rate  or  sum  imposed  by  government  upon  what  in  a 
individuals  (or  polls),  lands,  houses,  horses,  cattle,  possessions,  and  stricter 
occupations ; as  distinguished  from  customs  duties,  imposts,  and  sense  ? 
excises.  (Id. ; Webster.)  This  is  the  ordinary  sense  of  the  word. 

In  Hew  York,  the  term  tax  has  been  held  not  to  include  a street 
assessment.  1 Johns,  77,  80;  Sharp  v.  Spear,  4 Hill,  76;  People 
v.  Brooklyn,  4 Comst.  419.)  Literally,  or  according  to  its  deri- What  liter- 
vation — an  imposition  laid  by  government  upon  individuals,  accord - ? 

ing  to  a certain  order  and  proportion,  (tributum  certo  ordine  consti-  22. 
tutum).  (Spelman,  voc.  Taxa)  Id.  Distinguished  from  eminent  144 
domain.  People  v.  Brooklyn,  4 Comst.  422-425;  s.  C.  6 Barb.  214. 

“Taxes”  means  burdens,  charges,  or  impositions,  put  or  set  upon 
persons  or  property  for  public  uses ; and  this  is  the  definition 
which  the  Code  gives  to  tailage.  2 Inst.  522 ; Carth.  438  ; Matter 
of  the  Mayor,  &c.  11  John.  80. 


73.  The  power  to  lay  and  collect  taxes,  duties,  imposts,  and  Over  what 
excises,  is  co-extensive  with  the  territory  of  the  United  States,  extent  of 
Loughborough  v.  Blake,  4 Wh.  317.  COU22r23 

The  power  of  taxation,  as  a general  rule,  is  a concurrent  power.  How  far  is 
The  qualifications  of  the  rule  are  the  exclusion  of  the  States  from  the  power 
the  taxation  of  the  means  and  instruments  employed  in  the  exer-  concurrent 
cise  of  the  functions  of  the  federal  government.  Yan  Allen  v.  The 
Assessors,  3 Wallace,  585. 


74.  The  States  possess  the  power  to  tax  the  whole  of  the  inter-  What  power 
est  of  the  shareholder  in  the  shares  held  by  him  in  the  national  have  the 
banks.  Yan  Allen  v.  The  Assessors,  3 Wallace,  588;  approved,  t0 
Bradley  v.  The  People,  4 Wallace,  462.  Chief-Justice  Chase,  in  a 1 
dissentient  opinion  for  himself  and  Justices  Wayne  and  Swayne, 
reviewed  McCulloch  v.  Maryland,  4 Wheat.  327,  and  Osborn  v. 
the  Bank  of  the  United  States,  9 Wheat.  73,  Weston  v.  The  city  of 
Charleston,  2 Pet.  449,  and  questioned  the  power  of  Congress  to 
authorize  State  taxation  of  national  securities,  either  directly  or  indi 
rectly.  Yan  Allen  v.  The  Assessors,  3 Wallace,  593. 

A city  cannot  tax  United  States  property  within  its  limits.  9th  What  limi- 
Op.  291.  tation  as  to 

The  jurisdiction  of  the  States  for  the  purposes  of  State  taxation  is 
supreme,  and  Congress  can  have  no  power  or  control  in  this  regard. 

State  Treasurer  v.  Wright,  28  111.  509 ; Gibbons  v.  Ogden,  9 Wh.  199. 

The  State  has  the  right  to  collect  taxes  in  gold  or  silver  coin  only ; 
and  Congress  cannot  control  by  its  legal  tender  laws.  State  Treas- 
urer v.  Wright,  28  111.  509. 

The  States  cannot  impose  a tax  upon  the  salaries  of  federal  offi-  97,  99, 155. 
cers.  (Dobbins  v.  The  Commissioners  of  Erie  County,  16  Pet.  435.) 

9th  Op.  477. 


the  States  ? 


82. 


75.  Duties. — Almost  equivalent  to  taxes  and  perhaps  synonym-  What  are 
ous  with  the  imposts.  (Federalist  Nos.  30,36.  Madison’s  letter  duties  ? 
to  Cabell,  18th  Sept.  1828;  3 Elliot’s  Debates,  289.)  Story’s  Const.  72,76. 
§ 952;  Hylton  v.  The  United  States,  3 Dali.  171,  177. 


76.  Imposts. — A custom  or  tax  levied  on  articles  brought  into  a Define  im- 
country.  (United  States  v.  Tappan,  11  Wheat.  419.  A duty  on  Posts? 


96 


EXCISES,  76,  77. 


[Art.  Ly  Sec.  b, 


imported  goods  and  merchandise.  Story’s  Const.  952.  Id.  75. 

Abridgment,  § 4?  2.  Burrill’s  Law  Die.  Impost.  In  a large  sense,  144. 

any  tax,  duty  or  imposition.  Id. 

77.  Excise.  An  inland  imposition  upon  commodities,  charged  What  are 
in  most  cases  on  the  manufacturer.  2 Steph.  Com.  579.  A duty,  excise8? 
or  tax  on  certain  articles  produced  or  consumed  at  home.  144 
Wharton’s  Lex.  Excise.  1 Bl.  Com.  318.  It  includes  also  the 
duties  on  licenses  and  auction  sales.  2 Steph.  Com.  581 ; 3 Id. 

314.  And  see  Story’s  Const.  § 953.  Andrews  Bey.  Laws,  § 133; 

Burrill’s  Law  Die.  Excise.  2 Elliot’s  Debates,  209.  Generally  the 
opposite  of  imposts.  Story’s  Const.  § 953. 

Licenses  under  the  act  of  June  30,  1864,  “to  provide  internal  What 
revenue  to  support  the  government,  & c.”  (13  Stat.  223),  and  the  authority 
amendatory  acts,  conveyed  to  the  licensee  no  authority  to  carry  on  cens/con- 
the  licensed  business  within  a State.  License  Tax  Cases,  5 Wal-fer? 
lace,  462.  The  requirement  of  payment  for  such  licenses  is  only  a 
mode  of  imposing  taxes  on  the  licensed  business,  and  the  prohibi- 
tion under  penalties,  against  carrying  on  the  business  without  license 
is  only  a mode  of  enforcing  the  payment  of  such  taxes.  The  pro- 
visions of  the  act  of  Congress  requiring  such  licenses,  and 
imposing  penalties  for  not  taking  out  and  paying  for  them,  are  not 
contrary  to  the  Constitution  or  to  public  policy.  Id. 

The  provisions  in  the  act  of  July  13,  1866,  “to  reduce  internal 
taxation,  &c.”  (14  Stat.  93),  for  the  imposing  of  special  taxes,  in 
lieu  of  requiring  payment  for  licenses,  removes  whatever  ambiguity 
existed  in  the  previous  laws,  and  are  in  harmony  with  the  Consti- 
tution and  public  policy.  Id. 

The  recognition  by  the  acts  of  Congress  of  the  power  and  right  73. 
of  the  States  to  tax,  control,  or  regulate  any  business  carried  on  What  is  the 
within  its  limits  is  entirely  consistent  with  an  intention  on  the  part  power  of  the 
of  Congress  to  tax  such  business  for  national  purposes. 

A license  from  the  Federal  Government,  under  the  internal  rev- 
enue acts  of  Congress,  is  no  bar  to  an  indictment  under  a State  law  267. 
prohibiting  the  sale  of  intoxicating  liquors.  The  License  Tax 
Cases , 5 Wallace,  462;  Pervearv.  Commonwealth;  5 Wallace,  475. 

But  very  different  considerations  apply  to  the  internal  commerce  What  are 
or  domestic  trade  of  the  States.  Over  this  commerce  and  trade  ^ f 

Congress  has  no  power  of  regulation  nor  any  direct  control.  This  testate®  ?° 
power  belongs  exclusively  to  the  States.  No  interference  by  Con- 
gress with  the  business  of  citizens  transacted  within  a State  is 
warranted  by  the  Constitution,  except  such  as  is  strictly  incidental 
to  the  exercise  of  powers  clearly  granted  to  the  legislature.  Per- 
vear  v.  Commonwealth,  470,  471. 

The  provisions  in  the  act  of  July  13,  1866,  “ to  reduce  internal 
taxation,  &c.”  (14  Stat.  93),  for  the  imposing  of  special  taxes,  in 
lieu  of  requiring  payment  for  licenses,  removes  whatever  ambiguity 
existed  in  the  previous  laws,  and  are  in  harmony  with  the  consti- 
tion  and  public  policy.  Id. 

The  recognition  by  the  acts  of  Congress  of  the  power  and  right 
of  the  States  to  tax,  control,  or  regulate  any  business  carried  on 
within  its  limits  is  entirely  consistent  with  an  intention  on  the  part 
of  Congress  to  tax  such  business  for  National  purposes. 


ci.  i.] 


PUBLIC  DEBT,  77,  78. 


97 


A license  from  tlie  Federal  Government,  under  the  internal 
revenue  acts  of  Congress,  is  no  bar  to  an  indictment  under  a State  267. 
law  prohibiting  the  sale  of  intoxicating  liquors.  (The  License  Tax 
Cases,  5 Wallace,  462  affirmed.)  Pervear  v.  The  Commonwealth, 

5 Wallace,  475. 

A law  of  a State  taxing  or  prohibiting  a business  already  taxed  Of  prohibit- 
by  Congress,  as  ex.  gr.,  the  keeping  and  sale  of  intoxicating  or7 laws  ? 
liquors, — Congress  having  declared  that,  its  imposition  of  a tax 
should  not  be  taken  to  abridge  the  power  of  the  State  to  tax  or 
prohibit  the  licensed  business — is  not  unconstitutional.  Id. 

7§.  “ To  Pat  the  Debts.”  The  arrangement  and  phraseology  What  means 
(connected  with  what  follows)  shows  that  the  latter  part  of  the  to  pay  the 
clause  (“  To  provide  for  the  common  defence  and  general  welfare,  ”)  ^ 8q 
was  intended  to  enumerate  the  purposes  for  which  the  money  thus 
raised  was  intended  to  be  appropriated.  (President  Monroe’s  Mes- 
sage of  4th  Dec.  1822.)  Story’s  Const.  §978-981.  74—77. 

This  power  to  collect  taxes,  imposts,  and  excises,  subjects  to  the 
call  of  Congress  every  branch  of  the  public  revenue,  internal  and  360  • 

external.  (Monroe,  Id.)  Story’s  Const.  § 981.  And  these  powers 
give  the  right  of  appropriating  to  the  purposes  specified,  according 
to  the  proper  construction  of  the  terms.  Id. 


Statement  of  the  public  debt  on  the  1st  day  of  January  in  each  of  the  Examine  the 
year  Sr  from  1791  to  1842,  inclusive , and  at  various  dates  in  sub-  statement  of 


sequent  years  to  July  1,  1866. 


the  public 
debt? 


On  the  1st  day  of  January 1791 $ 75,463,476  52 

1792  77,227,924  66 

1793  80,352,634  04 

1794  78,427,404  77 

1795  80,747,587  38 

1796  83,762,172  07 

1797  82,064,479  33 

1798  79,228,529  12 

1799  78,408,669  77 

1800  82,976,294  35 

1801  83,038,050  80 

1802  80,712,632  25 

1803  77,054,686  30 

1804  . 86,427,120  88 

1805  82,312,150  50 

1806  -5,723,270  66 

1807  69,218,398  64 

1808  65,196,317  97 

1809  57,023,192  09 

1810  63,173,217  52 

1811  48,005,587  76 

1812  45,209,737  90 

1813  !...  55,962,827  57 

1814  81,487,846  24 

1815  99,833,660  15 

1816  127,334,933  74 

1817  123,491,965  16 


98  PUBLIC  DEBT,  78.  [Art.  I.,  Sec.  8, 

On  the  1st  day  of  January 1818 103,466,633  83 

1819  95,529,648  28 

1820  91,015,566  15 

1821  89,98*7,427  66' 

1822  93,546,676  98 

1823  90,875,877  28 

1824  90,269,777  77 

1825  83,788,432  71 

1826. .  81,054,059  99 

1827  73,987,357  20 

1828  67,475,043  87 

1829  58,421,413  67 

1830  48,565,406  50 

1831  39,123,191  68 

1832  24,322,235  18 

1833  7,001,032  88 

1834  4,760,081  08 

1835  351,289  05 

1836  291,089  05 

1837  1,878,223  55 

1838  * 4,857,660  46 

1839  11,983,737  53 

1840  5,125,077  63 

On  the  first  day  of  January, . . . 1841 6, 37, 398  00 

1842  15,028,486  37 

1843  27,203,450  69 

On  the  first  day  of  July 1844 24,748,188  23 

1845  17,093,794  80 

1846  16,750,926  33 

1847  38,956,623  38 

1848  48,526,379  37 

1849  64,704,693  71 

On  the  1st  day  of  December  . .1850 64,228,238  37 

1851 62,560,395  26 

On  the  20th  day  of  November  . 1852 65,131r692  13 

On  the  30th  day  of  December  .1853 67,340,628  78 

On  the  first  day  of  July 1854 47,242,206  05 

1855 39,969,731  05 

On  the  17th  day  of  November.  1856 30,963,909  64 

On  the  15th  day  of  November.  1857 29,060,386  90 

On  the  1st  day  of  July 1858 44,910,777  66 

1859  58,754,699,33 

1860  64,769,703  08 

1861  90,867,828  68 

1862  514,211,371  92 

On  the  1st  day  of  January.  . . .1863 1,098,793,181  37 

1864. .  . / 1,740,690,489  49 

s 1865 2,682,593,026  53 

1866 2,783,425,879  21 


S.  B.  COLBY,  Register. 

Treasury  Department, 

• Register's  Office,  November  22,  1866. 


01.  1.1 


PUBLIC  DEBT,  78. 


99 


Report  of  Secretary  of  Treasury  on  the  Finances,  p.  304. 

The  following  is  a statement  of  the  public  debt,  June  30,  1866, 
exclusive  of  cash  in  the  Treasury  : — 

Bonds,  10-40’s,  5 per  cent.,  due 

in  1904 $171, 219, 100  00  * 

Bonds,  Pacific  railroad,  6 per 

cent.,  due  in  1895  and  1896. ..  6,042,000  00 

Bonds,  5-20’s,  6 per  cent.,  due 

in  1882,  1884,  and  1885 722,205,500  00 

Bonds,  6 per  cent,  due  in  1881. . 265,317,700  00 

Bonds,  6 per  cent.,  due  in  1880 . . 18,415,000  00 

Bonds,  5 per  cent.,  due  in  1784  20,000,000  00 

Bonds,  5 percent.,  due  in  1871.  7,022,000  00 

$1,210,221,300  00 

Bonds,  6 per  cent.,  due  in  1868. . 8,908,341  80 

Bonds,  6 percent., due  in  1867. . 9,415,250  20 

Compound-interest  notes,  due  in 

1867  and  1868 159,012,140  00 

7-30  treasury  notes,  due  in  1867 

and  1868 806,251,550  00 

983,587,282  00 

Bonds,  Texas  indemnity,  past  due, 

not  presented  559,000  00 

Bonds,  treasury  notes,  &c.,  past 

due,  not  presented 3,815,675  80 

4,374,675  80 

Temporary  loan,  ten  days’  notice  120, 17  6, 196  65 
Certificates  of  indebtedness,  past 

due,  not  presented. ...  26,391,000  00 

146,567,196  65 

United  States  notes 400,891,368  00 

Fractional  currency 27,070,876  96 

Gold  certificates  of  deposit 10,713,180  00 

— 438,675,424  96 


Total 2,783,425,879  41 

The  foregoing  is  a correct  statement  of  the  public  debt,  as 
appears  from  the  books  and  Treasurer’s  returns  in  the  Department, 
on  the  1st  of  November,  1867. 

THE  PUBLIC  DEBT  STATEMENT. 

Washington,  Nov.  6,  1867,  ) 
11:30  o’clock,  P.  M.  y 

The  following  is  the  statement  of  the  public  debt  of  the  United 
States  on  the  1st  of  November,  1867  : — 

DEBT  BEARING  COIN  INTEREST. 


Five  per  cent,  bonds $ 198,845,350 

Six  per  cent,  bonds  of  1857  and  1868 14,690  940 

Six  per  cent,  bonds  of  1881 283,676,600 

Six  per  cent,  five-twenty  bonds 1,267,898,100 

Navy  Pension  fund 13,000,001 


Total $1,778,110,991 


100 


PUBLIC  DEBT.  78. 


[Art.  L,  Seo.  8, 


DEBT  BEARING-  CURRENCY  INTEREST. 

Six  per  cent,  bonds $ 18,042,000 

Three-year  compound-interest  notes 62,558,940 

Three-year  seven-thirty  notes 334,607,700 

Three  per  cent,  certificates 11,560,000 


Total $426,768,640 

MATURED  DEBT  NOT  PRESENTED*  FOR  PAYMENT. 

Three-year  seven-thirty  notes,  due  August  15,  1867  $ 3,371,100 

Compound-interest  notes,  matured  June  10,  July  15, 

August  15,  and  Oct.  15,  1867 9,316,100 

Bonds  of  Texas  indemnity 262,000 

Treasury  notes,  acts  July  17,  1861,  and  prior  thereto  163,661 

Bonds,  April  15,  1842 54,061 

Treasury  notes,  March  3,  1863 868,240 

Temporary  loan 4, 1 68, 3 7 5 

Certificates  of  indebtedness 34,000 


Total $18,237,538 


DEBT  BEARING  NO  INTEREST. 


United  States  Notes $357,164,844 

Fractional  Currency 30,706,433 

Gold  certificates  of  deposit 14,514,200 


Total $402,385,677 

Total  debt $ 2,625,502,848 


AMOUNT  IN  THE  TREASURY. 

In  coin $111,540,317 

In  currency 22,458,080 


Total $133,998,398 

Amount  of  debt,  less  cash  in  the  Treasury $2,491,504,450 

HUGH  McCULLOCH, 

Secretary  of  the  Treasury. 

Report  of  the  Secretary  of  the  Treasury  on  the  finances,  p.  25. 

There  has  been  some  diminution  of  the  public  debt  since  the 
promulgation  of  this  report. 

Whatever  may  have  been  the  theories  and  controversies  about 
the  powers  of  Congress  to  levy  taxes  for  other  purposes  than  to 
pay  the  debts  of  the  United  States,  and  as  to  whether  indirect  or 
direct  taxes  are  most  equal  and  just,  it  is  certain  that  the 
enormous  debt  now  existing,  together  with  the  necessarily  increased 
expenses  of  supporting  the  government,  will  afford  a fair  oppor- 
tunity of  giving  a trial  to  every  mode  of  raising  revenue.  The 
278.  debts  have  been  contracted.  The  great  future  question  is,  how  shall 
the  power  to  levy  taxes,  &c.,  bo  most  wisely  exercised  in  order 
to  pay  them  ? 


Cl.  1.] 


COMMON  DEFENCE,  79. 


101 


79.  To  provide  for  the  common  defehce. — See  this  sentence  Howiscom- 
contained  in  connection  with  the  conclusion,  that  all  duties,  imposts,  mon  defence 
and  excises  shall  be  uniform  throughout  the  United  States.  This  ion78.rued? 
provision  operates  exclusively  on  the  power  granted  in  the  first 
part  of  the  clause.  (Monroe.)  Story’s  Const.,  § 982. 

The  object  is  to  secure  a just  equality  among  the  States  in  the 
exercise  of  that  power  by  Congress.  (Monroe.)  Id.,  § 982. 

The  grant  consists  of  two-fold  power : to  raise  ; and  to  appro-  What  two 
priate  the  money.  (Monroe.)  Id.,  § 986.  % powers  in 

The  power  in  this  clause  is  limited  by  the  nature  of  the  govern- 
ment  only.  Id.,  and  § 991. 

For  a more  limited  doctrine,  see  President  Jackson’s  veto  mes- 
sage of  the  Maysville  road  bill,  27  May,  1830 ; 4 Elliot’s  Debates, 

333-335;  4 Jefferson’s  Correspondence,  524;  Jefferson’s  message,  72-77. 

2d  Dec.,  1806;  Wait’s  State  papers,  457,  458. 

The  extent  of  the  power  has  been  very  much  debated,  and 
perhaps  the  subject  was  exhausted  in  Congress,  as  reported  in  4th  80. 
Elliot’s  Debates,  236,  240,  265,  278,  280,  284,  291,  292,  332,  334, 
and  in  Hemphill’s  Report  on  Internal  Improvements,  10th  Feb., 

1831 ; see  also  1 Kent’s  Com.,  Lect.  XII,  250,  251 ; Sergt’s  Const., 
ch.  28,  311-314;  Rawle  on  the  Const.,  ch.  9,  p.  104;  2 United 
States  Law  Jour.,  April,  1826,  p.  251,  264-280;  Story’s  Const., 
ch.  xiv. 

Every  one  will  determine  for  himself  the  practice  of  the  govern- 
ment from  the  appropriations  for  the  Cumberland  road  in  1806, 
down  to  the  Pacific  railroads,  and  judge  the  value  of  precedents, 
according  to  his  own  theories.  The  speeches  of  Mr.  Huger  and 
Grimke  in  the  South  Carolina  legislature,  in  1830,  may  well  be 
consulted  by  students.  The  term  is  necessarily  connected  with 
the  next,  “ the  general  welfare.” 

The  Confederate  States  Constitution  contained  this  limitation: — 

11  To  levy  and  collect  taxes,  duties,  imposts,  and  excises,  for  what  was 
revenue  necessary  to  pay  the  debts,  provide  for  the  common the  Confede- 
defence,  and  carry  on  the  government  of  the  Confederate  States ; frebeb^Con- 
.but  no  bounties  shall  be  granted  from  the  treasury,  nor  shall  any  stitution? 
duties  or  taxes  on  importations  from  foreign  nations  be  laid  to  pro- 
mote or  foster  any  branch  of  industry;  and  all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the  Confederate  States.” 

Paschal’s  Annotated  Dig.,  88. 

It  will  thus  be  seen  that,  as  in  the  preamble  of  the  Constitution  5, 11. 
of  this  peculiarly  indoctrinated  school,  they  took  “ to  provide  for 
the  general  welfare”  out  of  their  Constitution;  while  they  left 
the  “ common  defence”  in,  although  it  was  not  one  of  the  objects 
expressed  in  the  preamble. 

To  leave  no  doubt  of  the  intention  to  exclude  the  ideas  which  80-89. 
had  divided  the  country  upon  the  subject  of  internal  improvements, 
the  same  Constitution  contained  this  clause: — 

“ 3.  To  regulate  commerce  with  foreign  nations,  and  among  the  82-89. 
several  States,  and  with  the  Indian  tribes ; but  neither  this  nor 
any  other  clause  contained  in  the  Constitution,  shall  ever  be  con- 


102 


DEFENCE,  DUTIES,  79,  80,  81.  [Art.  I.,  Sec.  8 


Internal  im- 
provements. 


Define  the 

general 

welfare. 

11,  79,  89. 
79. 


What  is  the 
power  and 
the  purpose? 


22,74. 


What  are  the 
rules  for 
taxes? 


22, 144,  145. 


Define  uni- 
form f 


strued  to  delegate  the  power  to  Congress  to  appropriate  money  foi 
any  internal  improvement,  intended  to  facilitate  commerce,  except 
for  the  purpose  of  furnishing  lights,  beacons,  and  buoys,  and  other 
aids  to  navigation  upon  the  coasts,  and  the  improvement  of  harbors 
and  the  removing  of  obstructions  in  river  navigation : in  all  which 
cases  such  duties  shall  be  laid  on  the  navigation  facilitated  thereby, 
as  may  be  necessary,  to  pay  the  costs  and  expenses  thereof.” 
Paschal’s  Annotated  Digest,  p.  88. 

The  objept  of  this  was  to  prevent  land  internal  improvements  by 
the  National  government;  and  yet  we  find  the  same  men  as  early 
as  April  19th,  1862,  appropriating  a million  and  a half  of  dollars 
to  aid  in  the  construction  of  a railroad  from  New  Iberia  in  Louisi- 
ana to  Houston  in  Texas.  Acts  of  Confederate  States  at  large,  84. 
Like  appropriations  were  made  to  complete  the  road  from  Danville 
to  Raleigh.  The  amendment  was  in  accordance  with  the  extreme 
States  rights  or  strict  constructionists’  views. 

80.  “And  General  Welfare.”  Judge  Story  believed  that  the 

true  import  of  the  whole  clause  could  be  thus  expressed : “ The 

Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  in  order  to  pay  the  debts,  and  to  provide  for  the  common 
defence  and  general  welfare  of  the  United  States.”  Story’s  Const. 
§ 908.  Thus  limiting  the  power  of  the  government  to  tax  for  pro- 
viding for  the  common  defence  and  general  welfare.  Id.  and 
§ 911-913. 

The  laying  taxes  is  the  power , and  the  general  welfare  the  pur- 
pose for  which  the  power  is  to  be  exercised.  Congress  are  not  to 
lay  taxes  ad  libitum  for  any  purpose  they  please  ; but  only  to  pay 
the  debts  or  provide  for  the  general  welfare  of  the  Union.  In  like 
manner  they  are  not  to  do  any  thing  they  please,  to  provide  for  the 
general  welfare ; but  only  to  lay  taxes  for  that  purpose.  (Jeffer- 
son’s Op.  on  the  Bank  of  the  United  States  15  Eeb.  1781 ; 4 Jeffer- 
son’s Correspondence  524,  525.)  Story’s  Const.  § 926,  927,  note  3 ; 
Elliot’s  Debates,  170,  183,  195,  328,  344;  3 Elliot’s  Debates,  262; 
2 American  Museum,  434 ; 2 Elliot’s  Debates,  81,  82,  311 ; 3 Elliot’s 
Debates,  262,  290;  2 American  Museum,  544. 

The  power  does  not  interfere  with  the  power  of  the  states  to  tax 
for  the  support  of  their  own  governments.  Congress  is  not  em- 
powered to  tax  for  those  purposes  which  are  within  the  exclusive 
province  of  the  States.  Gibbons  v.  Ogden,  9 Wheat.  199 ; 1 
Kent’s  Com.  251;  Sergeant’s  Const.  Ch.  28,  p.  311-315.  Rawle’s 
Const.  Ch.  9,  p.  104;  2 United  States  L.  I.,  April,  1826,  251-282. 

81.  “ All  duties  to  be  uniform.”  Congress  has  plenary  power 

over  every  species  of  taxable  property,  except  exports.  But  there 
are  two  rules  prescribed  for  their  government : — Uniformity,  and 
apportionment.  Duties,  imposts  and  excises  were  to  be  laid  by  the 
first  rule ; and  capitation  and  other  direct  taxes  by  the  second. 
(Hylton  v.  The  United  States,  3 Dali.  171.)  1 Kent’s  Com.  255. 

Taxes  under  this  clause  must  be  uniform ; but  need  not  be 
apportioned  according  to  census.  Idem.  Yet  “uniform”  must 
mean  that  the  same  duties  shall  be  paid  at  all  the  ports  in  the 
“ States  and  Territories,”  throughout  the  United  States ; and  that 


BOKEOW  MONEY,  82,  83,  84. 


103 


$1. 1,2.] 


the  same  income  taxes  and  excises  should  operate,  alike  including  91. 
the  District  of  Columbia.  Loughborough  v.  Blake,  5 Wheat.  317. 

The  Indian  tribes  are  not  included  in  the  excise  law.  91,  92. 

See  “ uniform  ” rule  of  naturalization.  93,  94. 

[2.]  To  borrow  money  on  the  credit  of  the  United  To  borrow. 
States. 

82.  As  first  reported  it  read:  “To  borrow  money  [and  emit  129- 

bills]  on  the  credit  of  the  United  States.’’  To  “emit  bills,”  was  18. 

stricken  out,  after  debate,  on  the  ground,  that  “ on  the  credit ,”  autho- 

rized  the  issuing  of  bills  or  notes  by  the  government.  Metropo-  0 ' 
litan  Bank  v.  Yan  Dyke,  27  N.  Y.  R.  420  ; 3 Madison  papers,  1343. 

83.  Monkey. — [Moneta.]  Cash;  that  is,  gold  and  silver,  or  the  What  is 
lawful  circulating  medium  of  the  country,  including  bank  notes,  money? 
when  they  are  known  and  approved  of  and  used  in  the  market  as  97,  98,  129. 
cash.  (Co.  Litt.  207  a ; Lord  Ellenborough,  13  East  20 ; Kent,  in 

Mann  v.  Mann,  1 Johns.  Ch.  R.  236.)  Burrill’s  Law  Die.  Money. 

And  money  deposited  in  bank  ; but  not  stocks.  Hotham  v.  Sutton, 

15  Yes.  319;  Mann  v.  Mann,  1 Johns.  Ch.  p.  257. 

For  the  necessity  of  this  power,  see  the  Federalist  No.  41 ; 

Story’s  Const.  § 1065.  ^ 

Treasury  notes  have  been  issued  under  the  acts  of  25th  Feb.  ^Treasury 
1813,  26th  December,  1814,  12th  October,  1837,  31  January,  1842,  notes  on 
31  August  1842,  22  July,  1846,  28  July,  1847,  23  December,  1857,  ^thority 
the  25th  February,  1862,  and  the  several  subsequent  acts.  They  issued? 
are  binding  on  the  government.  (Thorndyke  v.  The  United  States, 

2 Mason,  1,  18.)  Metropolitan  Bank  v.  Yan  Dyck,  27  New  York, 

421.  Some  have  drawn  interest ; others  not;  they  all  circulate  as 
money.  And  see  the  Pennsylvania  Cases.  52  Penn.  St.  Rep. 

15-100. 

84.  The  United  States  bonds  and  indeed  all  the  public  securi-  78. 
ties  which  have  to  be  redeemed,  and  which  circulate  as  currency 

moy  properly  be  classified  as  money  borrowed,  or  rather  securities  22. 

given  for  money  borrowed  on  the  credit  of  the  United  States.  The  362. 

bonds  issued  and  sold  in  market  are  technically  so. 

. The  states  have  no  power  to  tax  the  loan  of  the  United  States.  Can  the 

Weston  v.  City  Council  of  Charleston,  2 Pet.  449-65 ; Bank  of  States  tax 

Commerce  v.  New  York,  2 Black,  629.  The  Constitutional  Court  securities! 

of  South  Carolina,  in  May,  1823,  decided  in  favor  of  the  power  to 

tax  the  loan.  Judge  Huger  and  two  other  judges,  against  four, 

gave  an  opinion  against  the  constitutionality  of  the  law.  2 Pet.  22 

452. 

The  sovereignty  of  a state  extends  to  every  thing  which  exists 
by  its  own  authority,  or  is  introduced  by  its  permission,  but  not  to 
those  means  which  are  employed  by  Congress  to  carry  into  execu- 
tion powers  conferred  on  that  body  by  the  people  of  the  United 
States.  (Weston  v.  The  City  of  Charleston,  2 Pet.  449.)  Bank  of 
Commerce  v.  New  York,  2 Black,  632. 

This  power  is  supreme  within  its  scope  and  operation,  and  may 
be  exercised  free  and  unobstructed  by  state  legislation  or  authority. 


104  LEGAL  TENDER,  84.  [Art.  I.,  Sec.  !?, 

(McCulloch  y.  The  State  of  Maryland,  4 Wh.  116;  Osborn  y.  The 
United  States,  9 Wh.  732,)  Bank  of  Commerce  v.  New  York  City, 
2 Black.  632. 

Aretreas-  For  the  history  of  this  section,  see  Metropolitan  Bank  v.  Yan 
^nsUtu68  a 27  N.  Y.  Rep.  419,  et  seq.  The  power  to  issue  notes  is  thus 
tional  legal  giyen»  an(l  the  convention  declined  to  prohibit  the  making  them  a 
tender  ? legal  tender  in  payment  of  either  public  or  private  debts.  (Thorn- 
dyke  y.  United  States,  2 Mas.  1,  18).  Id.  And  after  a full  review 
82,  83.  of  the  question  of  power,  it  was  held  that  such  notes  may  consti- 
tutionally be  made  a legal  tender  in  payment  of  all  debts  between 
97-100.  individuals.  Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y.  451. 

Congress  has  constitutional  power  to  issue  treasury  notes  of  the 
United  States,  and  make  them  lawful  money,  and  a legal  tender 
for  the  payment  of  debts.  Shollenberger  v.  Brinton,  52  Penn.  St. 
Rep.  (2  P.  F.  Smith)  9,100 ; Brown  v.  Welch,  26  Ind.  116;  Thayer 
v.  Hedges,  23  Ind.  141  ; Bank  of  Indiana  v.  Reynolds,  Law  Reg. 
1865.  (But  Contra , Judge  Cadwalader.  Morrison  v.  Reading 
Railroad.)  Shollenberger  v.  Brinton,  52  Penn.  49. 

The  Act  of  Congress  of  Feb.  25,  1862,  authorizing  the  issue  of 
such  notes,  is  constitutional.  Shollenberger  v.  Brinton,  52  Penn- 
St.  Rep.  (2  P.  F.  Smith)  9,100  ; Carpenter  v.  Northfield  Bank,  39 
Yt.  (4  Yeasey)  49. 

Give  the  exg  The  principal  sum  which  redeems  a ground-rent,  is  a “ debt  ” 
amplesf  ’^thin  the  meaning  of  the  act.  Shollenberger  v.  Brinton,  52, 
Penn,  9,  100. 

A ground-rent  payable  in  “*  * * dollars,  lawful  silver  money  of 
the  United  States  of  America,”  is  redeemable  by  such  notes.  Id. 

155.  So  the  half-yearly  instalment  of  a ground-rent,  payable  in  “ * * * 

dollars  lawful  silver  money  of  the  United  States,  each  dollar 
weighing  16  dwt.  6 gr.  at  least”  Mervin  v.  Sailor,  52  Penn.  St. 
Rep.  (2  P.  F.  Smith),  18,  45,  102. 

So  a ground-rent  payable  in  “ lawful  money,”  or  “lawful  money 
of  the  United  States.”  Davis  v.  Burton,  52  Penn.  St.  Rep.  (2  P. 
F.  Smith)  22;  Kroener  v.  Calhoun,  52  Penn.  St.  Rep.  (2  P.  F. 
Smith)  24. 

So  a certificate  of  deposit  of  “ * * * gold,  payable  in  like  funds 
with  interest.”  Sandford  v.  Hays,  52  Penn.  St.  Rep.  (2  P.  F. 
Smith)  26;  Warner  v.  Sauk  Co.  Bank,  20  Wis.  494;  Warnibold  v. 
Schlicting,  16  Iowa,  243;  Breitenbach  v.  Turner,  18  Wis.  140. 

So  a note  for  a sum  of  money  marked  in  margin,  “$14,145  specie,” 
which  by  banker’s  rules,  meant  gold  or  silver  coin.  Graham  v* 
Marshall,  52  Penn.  St.  Rep.  (2  P.  Smith)  28,  103 

So  a note  for  “*  * * dollars  in  gold,”  Laughlin  v.  Harvey,  52 
Penn.  St.  Rep.  (2.  P.  F.  Smith)  30;  Wood  v.  Bullens,  6 Allen 
(Mass.)  516,  518. 

So,  “ or  if  paid  in  paper,  the  amount  thereof  necessary  to  pur- 
chase the  gold,  at  the  place  of  payment.”  (. Logansport  v.  Indiana .) 
Brown  v.  Welch,  26  Ind.  116. 

The  condition  of  a bond  for  payment  of  $3,000  “in  good  coins  of 
United  States,  of  a particular  fineness,  notwithstanding  any  laws 
which  may  now,  or  hereafter  shall  make  any  thing  else  a tender  in 


s 


Cl.  3.] 


TENDER,  COMMERCE  84-87. 


105 


payment  of  debt.  Hdd,  not  payable  in  greenbacks.  Dutton  v. 

Pailant,  52  Penn.  St.  Rep.  (2  P.  F.  Smith)  109. 

“ When  treasury  notes  were  made  a legal  tender  in  payment  of  97,  98. 
debts,  they  were  made  the  equivalent  of  coin  as  a means  of  pay-  99. 
ment,  in  all  but  the  cases  excepted  by  law.”  Brown  v.  Welch,  26 
Ind.  117. 

The  outstanding  debt  of  the  United  States  for  borrowed  money  78. 
usually  called  the  loan,  see  note  78. 

[3.]  To  regulate  commerce  with  foreign  nations,  and  what  is  the 
among  the  several  States,  and  with  the  Indian  tribes.  commerce  ? 

85.  “To  regulate.”  That  is,  to  prescribe  the  rule  by  which  How  to  reg- 

commerce  is  to  be  governed.  (Gibbons  v.  Ogden,  9 Wheat.  196.)  u'late  com_ 
Story’s  Const.  § 1061.  • men?0i. 

The  power  is  exclusive,  and  leaves  no  residuum.  (Gibbons  v.  79, 80. 
Ogden,  9 Wheat.  209.)  Story’s  Const.  § 1072.  See  the  Passenger 
Cases,  7 How.  283. 

But  a State  may  pass  police  laws  for  the  protection  of  its  inhabi-  363. 
tants  against  paupers.  This  is  not  a regulation  of  commerce.  The 
city  of  New  York  v.  Miller,  12  Pet.  102,  132;  Story’s  Const. 

§ 1072  a. 

It  is  denied  that  the  power  “ to  regulate  ” is  exclusively  in  Com  S9. 
gress.  (The  License  Cases,  5 How.  504.)  Id.  § 1072,  And  license 
laws,  the  primary  object  of  which  is  to  secure  the  health  of  the  com- 
munity. The  License  Cases,  5 How.  504;  Story’s  Const.  § 1072. 

86.  “Commerce”  is  traffic,  but  it  is  something  more;  it  is  inter-  What  is 
course.  Gibbons  v.  Ogden,  9 Wheat.  191,  209.)  United  States  v.  commerce? 
Holliday,  3 Wallace,  417 ; Story’s  Const.  § 1061,  note  2. 

Buying,  selling,  and  exchanging  is  t^e  essence  of  commerce.  3 
Wall,  417.  It  also  includes  navigation,  as  well  as  traffic,  in  its 
ordinary  signification ; and  embraces  ships  and  vessels  as  the  instru- 
ments of  intercourse  and  trade,  as  well  as  the  officers  and  seamen 
who  navigate  and  control  them.  The  power  of  Congress  extends  to 
all. these  subjects.  People  v.  Brooks,  4 Denio,  469. 

For  the  necessity  of  this  power  see  the  Federalist,  Nos.  4,  7,  11, 

22,  37;  Gibbons  v.  Ogden,  9 Wheat.  225;  Brown  v.  Maryland,  12 
Wheat.  445,  446;  Story’s  Const.  §§  1057,  1060. 

To  regulate  the  external  commerce  of  the  nation  and  the  respec- 
tive states.  People  v.  Huntington,  4 N.  Y.  Leg.  Obs.  187.  The  196. 
whole  subject  fully  discussed.  Id.  But  not  to  declare  the  status  Can  Con- 
which  any  person  shall  sustain  while  in  any  State  of  the  Union.  fjjess^clar^ 
The  power  can  be  exercised  over  persons  as  passengers,  only  per^ns 
while  on  the  ocean,  and  until  they  come  under  State  jurisdiction,  the  States? 
It  ceases  when  the  voyage  ends,  and  then  the  State  laws  control,  is,  196. 
Lemmon  v.  People,  '26  Barb.  270 ; affirmed,  20  N.  Y.  562. 

87.  “Commerce  with  foreign  nations”  means  commerce  be- With  foreign 
tween  citizens  of  the  United  States  and  citizens  or  subjects  of  for-  nations, 
eign  governments,  as  individuals.  United  States  v.  Holliday,  3 
Wallace,  417  ; Flannagan  v.  Philadelphia,  22  Penn.  219.  The  erec-  231. 
fion  of  wharves  is  subservient  to  commerce.  Stevens  v.  Walker, 

15  La.  Ann.  577, 


106 


COMMERCE,  87,  88. 


[Art.  I.,  Sec.  8, 


365.  The  giving  of  a license  by  a municipal  corporation  is  not  a regu- 
lation of  commerce.  Childers  v.  People,  11  Mich.  43. 

The  violation  of  a local  law  requiring  such  licenses,  by  the  use 
of  an  unlicensed  boat,  though  it  be  duly  licensed  for  the  coasting 
and  foreign  trade  under  the  laws  of  the  United  States,  is  a punish- 
able offense.  Id. 

A tax,  the  effect  of  which  is  to  diminish  personal  intercourse,  is 
a tax  upon  commerce.  Linsing  v.  Washburn,  3d  Cal.  534.  The 
California  tax-law  upon  Chinese  is  a violation  of  this  section  and 
unconstitutional.  Id. 

With  foreign  This  power,  like  all  others  vested  in  Congress,  is  complete  in  itself 
^on^the^  may  exerc^se(^  to  its  utmost  extent,  and  acknowledges  no  limita- 
several  6 tions  other  than  are  prescribed  in  the  Constitution.  Gibbons  v 
States?  Ogden,  9 Wh.  196.  Commerce  with  foreign  nations,  and  among  the 
several  States,  can  meart  nothing  more  than  intercourse  with  those 
nations,  and  among  those  States,  for  the  purposes  of  trade,  be  the 
object  of  trade  what  it  may ; and  this  intercourse  must  include  all 
the  means  by  which  it  can  be  carried  on,  whether  by  the  free  navi- 
gation of  the  waters  of  the  several  States,  or  by  a passage  over  land 
through  the  States,  where  such  passage  becomes  necessary  to  the 
commercial  intercourse  between  the  States.  Corfield  v.  Coryell,  4 
Wash.  C.  C.  388;  Pennsylvania  v.  Wheeling  & Belmont  Bridge  Co. 
18  How.  421;  Columbus  Ins.  Co.  v.  Peoria  Bridge  Co.  6 McLean,  70; 
Columbus  Insurance  Co.  v.  Curtenius,  Id.  209 ; Jolly  v.  Terre  Haute 
Drawbridge  Co.  Id.  237 ; United  States  v.  Railroad  Bridge  Co.  Id. 
518.  This  clause  confers  the  power  to  impose  embargoes.  Gib- 
bons v.  Ogden,  9 Wh.  191;  United  States  v.  The  William,  2 Hall’s 
L.  J.  255,  272.  And  to  punish  crimes  upon  stranded  vessels.  Uni- 
ted States  v.  Coombs,  12  Pet.  72.  It  does  not,  however,  interfere 
with  the  right  of  the  several  States  to  enact  inspection,  quarantine, 
and  health  laws  of  every  description,  as  well  as  laws  for  regulating 
their  internal  commerce.  Gibbons  v.  Ogden,  9 Wh.  203 ; New  York 
v.  Miln,  11  Pet.  102;  Conway  v.  Taylor,  1 Black.  633.  Nor  with 
their  power  to  regulate  pilots.  Cooley  v.  Board  of  Wardens,  12 
How.  299.  Or  to  protect  their  fisheries.  Smith  v.  Maryland,  18 
How.  71;  Dunham  v.  Lamphere,  3 Conn.  268. 

88.  A State  law  which  requires  the  masters  of  vessels  engaged 
in  foreign  commerce  to  pay  a certain  sum  to  a State  officer,  on  ac- 
count of  every  passenger  brought  from  a foreign  country  into  the 
State,  or  before  landing  any  alien  passenger  in  the  State,  conflicts 
with  the  Constitution  and  laws  of  the  United  States.  Smith  v.  Tur- 
ner, 7 How.  263.  (This  decision  was  by  a divided  court,  and  is  not 
conclusive  authority.  Smith  v.  Marston,  5 Tex.  432.)  So  does  a 
state  law,  authorizing  the  seizure  and  imprisonment  of  free  ne- 
groes brought  into  any  port  of  the  state,  on  board  of  any  vessel, 
from  any  state  or  foreign  port.  Elkison  v.  Deliesseline,  2 Wh.  Cr. 
Cas.  56 ; 1 Opin.  659.  (But  see  2 Opin.  426,  contra.)  And  so  does 
a state  law  which  requires  an  importer  to  take  a license,  and  pay 
fifty  dollars  before  he  should  be  permitted  to  sell  a package  of  im- 
ported goods.  Brown  v.  Maryland,  12  Wh.  419.  Purvear  v.  Com- 
monwealth, 5 Wall.  478.  But  a State  law  which  imposes  a tax  on 
brokers  dealing  in  foreign  exchange,  is  not  repugnant  to  this  clause 


State  laws 
which  vio- 
late? 

79. 


01.  3.J 


COMMERCE,  88,  89. 


107 


of  the  Constitution.  Nathan  v.  Louisiana,  8 How.  73.  Nor  is  one 
imposing  a tax  on  legacies  payable  to  aliens.  Mager  v.  Grima,  Id.  490. 
Nor  are  the  license  laws  of  certain  States,  forbidding  the  sale  of 
spirituous  liquors  under  less  than  certain  large  quantities.  Thurlow 
y.  Massachusetts,  5 How.  504 ; The  State  v.  Allmond,  4 Am.  D.  R. 
533;  California  v.  Coleman,  4 Cal.  467. 


89,  “ Among  the  several  States.  This  section  quoted  with 
clause  18,  and  Art.  YI.,  Sec.  2,  and  Art.  X.  of  Amendments. 
Gilman  v.  Philadelphia,  3 Wallace,  724. 

Commerce  includes  navigation  ; and  comprehends  the  control  for 
that  purpose,  and  to  the  extent  necessary,  of  all  navigable  waters 
of  the  United  States  which  are  accessible  from  a State  other  than 
those  within  which  they  lie.  For  this  purpose  they  are  the  public 
property  of  the  nation,  and  subject  to  all  the  requisite  legislation  of 
Congress.  (Gibbons  v.  Ogden,  9 Wheat.  191 ; Corfield  v.  Cory  el,  4 
Wash.  C.  C.  R.  378.)  Gilman  v.  Philadelphia,  3 Wallace,  724,  725. 

The  right  includes  the  power  to  remove  all  obstructions,  and 
to  provide  for  the  punishment  of  offenders.  The  whole  powers 
which  existed  in  the  States  before  the  adoption  of  the  Federal 
Constitution,  and  which  have  always  existed  in  the  Parliament  in 
England.  Id. 

It  is  for  Congress  to  determine  when  its  full  powers  shall  be 
brought  into  activity,  and  as  to  the  regulations  and  sanctions  which 
shall  be  provided.  (United  States  v.  New  Bedford  Bridge,  1 Wood- 
bury & Minot,  420,  421;  United  States  v.  Coombs,  12  Peters.  72 ; 
New  York  v.  Milne,  11  Peters,  102,  155.)  Gilman  v.  Phila- 
delphia, 3 Wallace,  725. 

Wherever  “ commerce  among  the  States  ” goes,  the  power  of 
the  nation,  as  represented  in  this  Court,  goes  with  it  to  protect  and 
enforce  its  rights.  (Gibbons  v.  Ogden,  9 Wheat.  191 ; Steamboat  v. 
Livingston,  3 Co  wen.  713.)  Gilman  v.  Philadelphia,  3 Wallace, 
725. 


What  is 
commerce 
among  the 
several 
States  ? 

138,  114,  274, 
203. 

86,  87. 


What  does 
the  right  in- 
clude ? 


203. 


What  is  the 
power  of  the 
Supreme 
Court  to  en- 
force the 
right  ? 


The  National  Government  possesses  no  powers  but  such  as  have  What  are  the 
been  delegated  to  it  by  the  States,  which  retain  all  but  such  as  they  th^United 
have  surrendered.  The  power  to  authorize  the  building  of  a states  ? 
bridge  is  not  to  be  found  in  the  Federal  Constitution.  It  has  not  71^  13^  269. 
been  taken  from  the  States.  Id.  When  the  Revolution  took  place 
the  people  of  each  State  became  themselves  sovereign,  and  in  that  2,  6. 
character  hold  the  absolute  right  to  all  their  navigable  waters  and 
the  soil  under  them  for  their  own  common  use,  subject  only  to  the 
rights  since  surrendered  by  the  Constitution  to  the  general  govern- 
ment. (Martin  v.  Waddell,  16  Peters,  410.)  Gilman  v.  Philadelphia, 

3 Wallace,  726.  Ante  Preface,  pp.  viii.,  ix.  The  right  of  eminent  Eminent do- 
domain  over  the  shores  and  the  soil  under  the  navigable  waters,  for  main  ? 
all  municipal  purposes,  belongs  exclusively  to  the  States  within  their 
territorial  jurisdiction , and  they  only  have  the  power  to  exercise 
it.  Id. 


But  this  right  can  never  be  used  to  affect  the  exercise  of  any  Can  the 
national  right  of  eminent  domain  or  jurisdiction  with  which  the  States  use  a 
United  States  have  been  invested  by  the  Constitution.  (Pollard’s 
lessee  v.  Hogan,  3 Howard,  230.)  Gilman  v,  Philadelphia,  3 Wal- 
lace,  726. 


108 


COMMEKCE,  89,  90. 


[Art.  I.,  Sec.  8, 


What  sub-  Inspection  laws,  quarantine  laws,  health  laws  of  every  descrip- 
jectsareun- tion,  as  well  as  laws  for  regulating  the  internal  commerce  of  a 
control  ?e  State,  and  those  which  respect  turn-pike  roads,  ferries,  &c.,  are 
component  parts  of  the  powers  of  a State.  (Gibbons  v.  Ogden, 

9 Wheat.  192)  Gilman  v.  Philadelphia,  3 Wallace,  726.  And  also 
bridges.  (People  v.  S.  & R.  R.  R.  Co.,  15  Wend.  113.)  Id. 

Pilot  laws  ? Pilot  laws  enacted  in  good  faith  are  within  the  powers  of  the 
States.  (Cooly  v.  The  Board  of  Wardens,  12  Howard,  319.)  Gil- 
man v.  Philadelphia,  3 Wallace,  727.  Master  v.  Ward,  14  La.  A. 
289  ; Master  v.  Morgan,  14  lb.  595. 

When  is  a But  where  Congress  has  acted  the  law  is  paramount.  (Pennsyl- 
law  of  Con-  vailia  v#  Virginia,  18  Howard,  430.)  Gilman  v.  Philadelphia,  3 
mount?  Wallace,  727,  729.  Until  Congress  has  exercised  the  power,  the 
State  may  authorize  obstructions  which  do  not  violate  the  Consti- 
tution. (Wilson  v.  Blackbird  Creek  Marsh  Co.  2 Peters,  250.)  Id. 
727-729. 

When  may  The  States  may  exercise  concurrent  or  independent  power  in  all 
the  States  cases  but  three  : 1.  Where  the  power  is  lodged  exclusively  in  the 
current  pow-  Federal  Constitution.  2.  Where  it  is  given  to  the  United  States 
ers?  and  prohibited  to  the  States.  3.  Where  from  the  nature  and  sub- 

jects of  the  power,  it  must  be  necessarily  exercised  by  the  National' 
Government  exclusively.  (Houston*  v.  Moore,  12  Wheat.  419; 
Federalist  No.  32.)  Gilman  v.  Philadelphia,  3 Wallace,  730. 

What  laws  A State  law  requiring  an  importer  to  take  out  a license  before  he 
°taStateare  shall  sell  a bale  of  goods  is  void.  (Brown  v.  Maryland,  12  Wrheat. 

419.)  Gilman  v.  Philadelphia,  3 Wallace,  730.  Purvear  v.  Com- 
monwealth, 5 Wall.  478.  So  the  passenger  laws  from  foreign 
countries.  (Passenger’s  Cases,  7 Howard,  273.)  Gilman  v.  Phila- 
delphia, 3 Wall.  730.  Not  so  of  the  State  liquor-license  laws. 
(License  cases,  5 Howard,  504.)  Gilman  v.  Philadelphia,  3 Wallace 
730.  Purvear  v.  Commonwealth,  5 Wall.  498.  Congress  may 
Bridges?  regulate  all  bridges  over  navigable  waters,  remove  offending  bridges, 
and  punish  those  who  shall  thereafter  erect  them.  Id.  731. 

Where  does  The  power  to  regulate  commerce  does  net  stop  at  the  jurisdiction 
power  of  or  of  the  several  States.  (Gibbons  v.  Ogden,  9 Wheat.  190.) 

^rSn0t  Umted  States  v.  Holliday,  3 Wallace,  417. 

What  were  90.  As  to  the  power  of  Congress  over  the  subject  of  commerce 
the  powers  among  the  several  States,  see  the  Opinion  of  McLean,  J.,  in  Groves 
as  o saves.  ^ Slaughter,  15  Pet.  504;  Taney,  Oh.  J.,  Id.  508;  Baldwin,  J.,  Id. 

510.  In  Shelton  v.  Marshall,  16  Tex.  352,  Wheeler,  J.,  said: — As 
respects  the  power  of  the  States  over  the  subject  of  the  Constitutional 
inhibitions  in  question  (the  introduction  of  slaves  as  merchandise), 
what  we  deem  the  sound  and  correct  doctrine  was  stated  by  Chief- 
Justice  Taney,  in  Groves  v.  Slaughter,  15  Pet.  508,  viz.: — 

“ In  my  judgment,  the  power  over  this  subject  is  exclusively 
with  the  several  States:  and  each  of  them  has  a right  to  decide  for 
itself,  whether  it  will  or  will  not  allow  persons  of  this  description  to 
be  brought  within  its  limits,  from  another  State,  either  for  sale  or 
for  any  other  purpose ; and  also  to  prescribe  the  manner  and  mode 
in  which  they  may  be  introduced,  and  to  determine  their  condition 
and  treatment  within  their  respective  territories ; and  the  action  of 
the  several  States  upon  this  subject  cannot  be  controlled  by  Con- 


Cl.  3.] 


COMMERCE,  90,  91. 


109 


gress,  either  by  virtue  of  its  power  to  regulate  commerce,  or  by 
virtue  of  any  other  power  conferred  by  the  Constitution  of  the 
United  States.” 

Congress  may  have  power  to  prevent  the  obstruction  of  any  Navigable 
navigable  stream  which  is  a means  of  commerce  between  any  two  streams? 
or  more  States.  Works  v.  Junction  Railroad,  b McLean,  526; 

Jolly  v.  Terre  Haute  Drawbridge  Co.  6 Id.  237  ; Devoe  v.  Penrose 
Perry  Bridge  Co.  3 Am.  L.  J.  79.  But  a State  law  granting  the  ex-  203. 
elusive  privilege  of  navigating  a part  of  an  unnavigable  stream, 
which  is  wholly  within  the  State,  on  condition  of  rendering  such 
part  navigable,  is  not  repugnant  to  the  Constitution.  Veazie  v. 

Moore,  14  How.  568  ; Wilson  v.  Blackbird  Creek  Marsh  Co.  2 
Pet.  251. 

91.  “ With  the  Indian  Tribes.” — If  traffic  or  intercourse  be  With  the  In- 
carried  on  with  an  Indian  tribe,  or  with  a member  of  such  tribe,  dian  tribes? 
it  is  subject  to  be  regulated  by  Congress,  although  within  the  limits  ^ 

of  a State.  The  power  is  absolute,  without  reference  to  the  locality  tribe7 cause  a 
of  the  tribe  or  the  member  of  the  tribe.  United  States  v.  Holliday  difference  ? 

3 Wallace, 418.  This  power  is  not  claimed  as  to  any  other  com- 
merce originated  and  ended  within  the  limits  of  a single  State.  Id. 

So  long  as  the  tribal  relations  exist,  the  Indians  who  are  con- 
nected with  their  tribes  and  under  the  jurisdiction  of  an  agent,  are 
under  the  protection  of  the  laws  to  regulate  trade  and  intercourse 
with  the  Indians.  Id.  The  States'  cannot  control  the  subject.  Id. 

Under  the  power  to  regulate  commerce  with  the  Indian  tribes, 

Congress  has  power  to  prohibit  all  intercourse  with  them,  except 
under  a license.  United  States  v.  Cisna,  1 McLean,  254.  So  Con- 
gress has  power  to  punish  all  crimes  committed  within  the  Indian 
country,  which  was  a part  of  the  Louisiana  territory,  dedicated  to 
the  Indians.  The  United  States  v.  Rogers,  4 How.  567. 

The  United  States  has  adopted  the  principle  originally  estab-  What  is  the 
lished  by  European  nations,  namely,  that  the  aboriginal  tribes  of  rule  as  J? 
Indians  in  North  America  are  not  regarded  as  the  owners  of  the  o^soU? lp 
territories  which  they  respectively  occupied.  Their  country  was 
divided  and  parceled  out,  as  if  it  had  been  vacant  and  unoccupied 
land.  Id.  If  the  propriety  of  exercising  this  power  were  now  an 
open  question,  it  would  be  one  for  the  law-making  and  political 
department  of  the  government,  and  not  the  judicial  Id. 

The  Indian  tribes  residing  within  the  territorial  limits  of  the  196. 
United  States,  are  subject  to  their  authority;  and  where  the 
country  occupied  by  them  is  not  within  the  limits  of  any  one  of  the 
States,  Congress  may  by  law,  punish  any  offence  committed  there, 
no  matter  whether  the  offender  be  a white  man  or  an  Indian.  Id. ; 

The  United  States  v.  Rogers,  4 How.  567. 

The  25th  section  of  the  act  of  30th  June,  1834,  extends  the  laws  Intercourse 
of  the  United  States  over  the  Indian  country,  with  a proviso  that iaw  ? 
they  shall  not  include  punishment  for  crimes  committed  by  one 
Indian  against  the  person  or  property  of  another  Indian.”  Id.  This 
exception  does  not  embrace  the  case  of  a white  man  who,  at  mature 
age,  is  adopted  into  an  Indian  tribe.  He  is  not  an  “ Indian  ” within 
the  meaning  of  the  law.  Id.  4 St.  729;  1 Brightly’s  Dig,  430,  § 

75,  4 Op.  72,  United  States  v.  Rogers,  4 How,  567. 


110 


COMMERCE,  91. 


[Art.  I.,  Sec.  8, 


What  means 
commerce 
with  the 
tribes  ? 


The  treaty  with  the  Cherokees,  concluded  at  New  Echota,  in 
1835  allows  the  Indian  council  to  make  laws  for  their  own  people, 
or  such  persons  as  have  connected  themselves  with  them.  But  it 
also  provides  that  such  laws  shall  not  be  inconsistent  with  acts  of 
Congress.  The  act  of  1834,  therefore,  controls  and  explains  the 
treaty.  It  results  from  these  principles,  that  a plea,  set  up  by 
a white  man,  alleging  that  he  had  been  adopted  by  an  Indian  tribe, 
and  was  not  subject  to  the  jurisdiction  of  the  circuit  court  of  the 
United  States,  is  not  valid.  Id. 

Commerce  with  the  Indian  tribes,  means  commerce  with  the  indi- 
viduals composing  those  tribes.  United  States  v.  Holliday,  3 Wal- 
lace, 417. 

The  cotton  grown  in  the  Indian  country  and  shipped  to  ports  of 
the  United  States  for  sale,  is  not  subject  to  the  Internal  revenue 
tax  levied  by  the  statutes  of  the  30th  June,  1864,  and  the  13th 
July,  1866.  The  case  of  R.  M.  Jones.  Attorney- General,  H.  Stan- 
bery’s  opinion,  of  24th  July,  1867.  12  Op.  206. 

All  these  provisions  fortify  the  conclusion  at  which  I have 
arrived,  that  cotton  produced  in  the  Choctaw  nation  does  not  come 
within  their  operation.  A tax  on  cotton  produced  there  or  manu- 
factured there,  or  sold  there,  cannot  be  levied,  assessed  or  collected 
under  the  provisions  of  these  acts.  Nor  is  there  any  thing  in  these 
acts  to  forbid  its  removal  or  sale  to  any  part  of  the  United  States. 
Being  a production  of  the  Indian  country  by  express  statutory 
enactment,  it  is  not  liable  to  any  import  or  transit  duty.  There  is 
no  lien  upon  it  for  any  tax  at  the  place  of  production,  nor  is  any 
permit  for  its  removal  necessary.  “ I am  clearly  satisfied  that  the 
omission  in  the  various  Internal  revenue  laws,  to  provide  for  the 
organization  of  collection  districts  over  the  Indian  territory  was  not 
fortuitous  or  accidental,  and  that  it  was  the  settled  purpose  of 
Congress  not  to  subject  the  persons  or  the  productions  of  Indians 
existing  under  their  regular  tribal  associations,  to  liability  for  any 
tax  imposed  by  these  acts. — If  the  provisions  as  to  the  specific 
article  of  cotton  apply  to  Indian  territory,  I see  no  reason  why  all 
the  other  forms  of  tax  provided  for  in  these  acts  are  not  equally 
applicable  to  Indian  territory.  We  must,  consequently  make  them 
subject  to  taxation  in  reference  to  stamps,  income,  and  descents  in 
succession,  as  well  as  for  other  purposes.  The  intent  of  Congress 
not  to  include  them  in  any  sort  of  taxation,  I think  is  clear  enough 
from  the  language  of  the  acts  themselves.  But  all  other  considera- 
tions which  apply  to  them,  equally  forbid  this  idea  of  Eederal 
taxation.  Their  rights  are  defined  by  independent  treaties.  They 
are  in  a state  of  tutelage  and  protection  under  the  United  States. 
Laws  in  which  they  are  not  mentioned,  are  never  understood  to 
apply  to  them.  Even  when  these  Indians  and  their  territory  are 
situated  within  the  bounds  of  a State  of  the  Union,  they  are  not 
subject  to  State  taxation.  In  recent  cases  before  the  supreme 
court  of  the  United  States,  at  its  December  term,  1866,  speaking  of 
the  condition  of  the  Indian  tribes  under  treaty  with  the  United 
States,  it  used  this  language : ‘ The  object  of  the  treaty  was  to 
hedge  the  lands  around  with  guards  and  restrictions,  so  as  to 
preserve  them  for  the  permanent  homes  of  the  Indians.  In  order 


01.  3.] 


INDIAN  TRIBES,  91,  92. 


Ill 


to  accomplish  this  object  they  must  be  relieved  from  every  species  368. 
of  levy,  sale,  and  forfeiture — from  a levy  and  sale  for  taxes,  as  well 
as  the  ordinary  judicial  levy  and  sale.’  The  Kansas  Indians,  5 
Wall.  760,  761.  Again  the  Courts  say,  in  reference  to  the 
tribal  association  of  the  Shawnees,  that  ‘ they  are  a people 
distinct  from  others,  capable  of  making  treaties,  separated 
from  the  jurisdiction  of  Kansas,  and  to  be  governed  exclusively  by 
the  government  of  the  Union.  If  under  the  control  of  Congress, 
from  necessity,  there  can  be  no  divided  authority. — If  they  have 
outlived  many  things  they  have  not  outlived  the  protection  afforded 
by  the  Constitution,  treaties,  and  laws  of  Congress. — It  may  be 
that  they  cannot  exist  much  longer  as  a distinct  people  in  the  pre- 
sence of  the  civilization  of  Kansas  ; but  until  they  are  clothed  with 
the  rights  and  bound  to  all  the  duties  of  citizens,  they  enjoy  the 
privilege  of  total  immunity  from  State  taxation.’  (Id.  755,  756). 

And  again: — ‘As  long  as  the  United  States  recognizes  their 
national  character  they  are  under  the  protection  of  the  treaties  and 
the  laws  of  Congress,  and  their  property  is  withdrawn  from  the 
operation  of  State  laws.’  (Id.  757.)  Such  is  the  well-established 
policy  of  the  United  States  with  regard  to  the  total  exemption  of 
the  Indian  tribes  from  State  taxation.  The  tenor  of  all  the  treaties 
shows  that  the  idea  of  subjecting  them  to  taxation  by  the  G-eneral 
Government,  was  never  entertained,  and  certainly  hitherto  it  has 
never  been  attempted.  I am,  therefore,  clearly  of  opinion  that  the 
particular  cotton  in  question  was  not  liable  to  taxation  under  our 
Internal  revenue  laws,  either  while  in  the  Indian  country  or  in 
transit  through  any  collection  district  of  the  United  States,  or  in  the 
collection  district  where  it  may  have  been  found  or  may  have  been 
sold.  Until  the  Indians  have  sold  their  lands,  and  removed  from 
them  in  pursuance  of  the  treaty  stipulations,  they  are  to  be  re- 
garded as  still  in  their  ancient  possessions,  and  are  in  under  their 
original  rights,  and  entitled  to  the  undisturbed  enjoyment  of  them. 

(Fellows  v.  Blacksmith,  19  How.  366.)  The  New  York  Indians,  5 
Wall,  770.” 

In  the  argument  of  the  case  of  R.  M.  Jones  before  the  Attorney- 
General,  the  Editor,  who  prosecuted  the  claim  to  have  the  tax, 
illegally  collected,  refunded,  cited  the  following  authorities:  The 
State  v.  Ross,  7 Yerg.  74;  United  States  v.  Cisna,  1 McLean,  254; 

Cherokee  Nation  v.  Georgia;  Worcester  v.  Georgia;  and  Johnson  v. 

McIntosh,  cited  elsewhere  in  this  note.  And  the  following  cases 
to  show  that  while  Indians  reside  within  the  States  as  portions 
of  tribes,  they  are  not  within  State  jurisdiction,  as  citizens  subject 
to  the  burdens  and  benefits  of  State  laws:  Danforth  v.  Wear,  9 
Wheat.  673;  Lee  v.  Glover,  8 Cow.  189;  Strong  v.  Waterman,  11 
Paige,  807  ; Harmon  v.  Partier,  12  Sm.  & Marsh.  425;  Marsh  v. 

Brooks,  8 How.  223;  Fellows  v.  Lee,  3 Denio  628;  Wall  v.  Wil- 
liams, 8 Ala.  48  and  11  Ala.  826;  Brashear  v.  Williamson,  10 
Ala.  630;  Parks  v.  Ross,  11  How.  427  ; Jones  v.  Laney,  2 Tex.  342. 

And  as  to  the  power  of  the  United  States  over  the  Indian  country, 

See  United  States  v.  Rogers,  4 Howard,  567.  What  are  th 

92.  These  various  authorities  settle  the  general  propositions : th^InSa^ 

1 - That  the  Indian  tribes  are  dependent  subordinate  States,  tribes  ? 


112 


INDIANS— NATURALIZATION,  92,  93.  [Art.  I.,  Sec.  8, 


whose  political  relations  with  the  United  States  are  defined  by 
treaties. 

2.  That  “ commerce  with  the  Indian  tribes”  is  subject  to  the 
exclusive  control  of  Congress,  and  it  has  only  been  regulated  by 
treaties  and  intercourse  laws. 

81.  3.  That  Indians  are  not  embraced  by  acts  of  Congress,  unless 

they  be  named  therein.  Opinion  of  Judge  Lewis,  Commissioner  of 
Internal  Revenue,  1863. 

And  see  9 Op.  21.  The  Indians  owe  no  allegiance  to  the  United 
States.  They  may  make  war  upon  them  without  incurring  the 
guilt  of  treason.  Op.  of  Judge  Lewis,  Commissioner  of  Internal 
Revenue.  u Though  he  holds  his  lands  within  the  limits  of  the 
United  States,  he  is  not  politically  within  its  limits,  nor  has  it  juris- 
diction over  him.”  Judge  Lewis.  The  stamp  tax  does  not  apply 
to  the  Indian  reservations,  when  sold  by  the  tribe ; nor  does  any 
part  of  the  laws  in  relation  to  Internal  Revenue.  Id.  The  court 
follows  the  executive  as  to  the  recognition  of  the  tribal  relations. 
Id.  Cites  The  Cherokee  Nation  v.  Georgia,  5 Peters,  1,  and  Wor- 
cester v.  Georgia,  6 Peters,  515. 

What  as  to  [4.]  To  establish  a uniform  rule  of  naturalization; 
naturahza-  an(j  uniform  laws  on  the  subject  of  bankruptcies 
Bankruptcy?  throughout  the  United  States. 


What  is  nat- 
uralization ? 


17,  18,  205, 
209. 

What  is  ex- 
patriation ? 

274. 


03.  Naturalization. — In  its  popular,  etymological,  and  legal 
sense,  signifies  the  act  of  adopting  a foreigner  and  clothing  him 
with  all  the  privileges  of  a native  citizen  or  subject.  9 Op.  359  ; 
Coke  Litt.  199a  ; 1 Bl.  Com.  374 ; 2 Kent’s  Com.  64-67.  These  laws 
are  based  upon  the  acknowledged  principle  of  expatriation.  Bates 
on  Citizenship,  13.  A naturalized  citizen  becomes  a member  of 
society,  possessing  all  the  rights  of  a native  citizen,  and  standing 
on  the  footing  of  a native.  The  power  is  to  prescribe  a “ uniform 
rule,”  and  the  exercise  of  this  power  exhausts  it,  so  far  as  respects 
the  individual.  The  Constitution  then  takes  him  up,  &c.  Osborn 
v.  Bank  of  United  States,  9 Wh.  827.  Expatriation  includes  not 
only  emigration  out  of  one’s  native  country,  but  naturalization  in 
220,  221,  222.  the  country  adopted  as  a future  residence.  9 Op.  359  ; 8 Op.  125 ; 

Paschal’s  Annotated  Digest,  p.  920,  note  1168,  where  the  authori- 
ties are  collected ; Halleck’s  International  Law  696  ; Rawle’s  Const. 
95-101 ; Sergeant’s  Const,  ch.  28,  30  ; 2 Kent’s  Com.  35,  42.  The 
naturalized  foreigner  is  protected  against  the  conscript  laws  of  his 
native  sovereign.  Ernest’s  Case,  9th  Op.  357-363.  The  power  to 
naturalize  is  exclusive  in  the  Federal  government.  The  Federalist, 
No.  32,  42  ; Chirac  v.  Chirac,  2 Wheat.  259,  269;  Rawle’s  Const. 
84-88 ; Houston  v.  Moore,  5 Wheat.  48,  49 ; Golden  v.  Prince,  3 
Wash.  C.  C.  R.  313,  332;  1 Kent’s  Com.  397.)  Story’s  Const.  § 
1104;  Thurlow  v.  Massachusetts,  5 How.  505;  Smithy.  Turner, 
7 How.  556.  The  power  must  be  exclusive  or  there  could  bo  no 
Where  alone u uniform  RULE.”  (Federalist,  No.  32;)  Story’s  Const.  1104. 

Constitution  gave  to  the  citizens  of  each  State  the 
zation  ? privileges  and  immunities  of  citizens  in  the  several  States,  it,  at 

120-123.  the  same  time,  took  from  the  several  States  the  power  of  naturali- 


Ie  the  power 
•xclusive  ? 


Cl.  4.]  NATURALIZATION— BANKRUPTCY,  93,  94. 


113 


zation,  and  confined  that  power  exclusively  to  the  Federal  govern-  369. 
ment.  The  right  of  naturalization  was,  therefore,  with  one  accord, 
surrendered  by  the  States,  and  confined  to  the  Federal  government. 

Golden  v.  Prince,  3 Wash.  c.  c.  314.  Naturalization  is  confined  to  90. 
persons  born  in  foreign  countries.  Scott  v.  Sandford,  19  How.  41 7- 
419.  The  Constitution  has  conferred  on  Congress  the  right  to  220, 17, 18. 
establish  uniform  rules  of  naturalization,  and  this  right  is  evidently 
exclusive.  Id.  405.  Negroes  cannot  be  naturalized.  Id.  And  Negroes, 
no  law  of  a State,  passed  since  the  Constitution  was  adopted,  can  274. 

give  any  right  of  citizenship  outside  of  its  own  territory.  Id.  The  209’ 

naturalization  law  of  1790,  only  extended  the  privilege  “to  aliens 
being  free  white  persons .”  Id.  Citizenship  at  that  time  was  per- 
fectly understood  to  be  confined  to  the  white  race.  Id.  Congress 
might  have  authorized  the  naturalization  of  Indians,  because  they  Indians, 
were  aliens  and  foreigners.  Id.  420.  For  the  latest  collection  of 
the  naturalization  laws  and  notes  thereon,  see  Paschal’s  Anno-  91, 92, 220. 
tated  Digest,  arts.  5392-5412;  notes  1168-1172,  and  148-150. 

A free  white  person  born  in  this  country,  of  foreign  parents,  is, 
a citizen  of  the  United  States.  (Lynch  v.  Clarke,  1 Sandford’ s Ch. 

R.  583.)  9 Op.  374.  This  is  a universal  principle  unless  changed 

by  statute,  as  in  our  own  statute  to  prevent  the  alienage  of  chil- 
dren born  abroad.  10  St.  604.  Bates  on  Citizenship,  13. 

Allegiance  on  the  one  side,  and  protection  on  the  other,  con-  Who  are  cit- 
stitute  citizenship  under  the  Constitution.  Smith  v.  Moody,  26izenB? 

Inda.  305.  Allegiance  and  protection  constitute  the  sum  of  the  220-223. 
duties  and  rights  of  a “ natural  born  citizen  of  the  United  States.”  What  are  the 
Bateson  Citizenship,  15.  Citizenship  cannot  depend  on  color  or  citizen  ?f  * 
caste.  Id.  14-17.  Alienage  is  the  only  disability  to  citizenship 
recognized  in  the  Constitution.  Id. 

94,  Uniform  System  of  Bankruptcy. — Bankrupt  \banke-  What  is  a 
rout].  Literally  from  Law  French  banke , Lat.  bancus , a bench,  bankrupt? 
table,  or  counter,  and  roupt  or  rout,  Latin  ruptus,  broken.  One 
whose  bench  or  counter  (place  of  business)  is  broken  up.  In 
English  law,  a trader  who  secretes  himself,  or  does  certain  other 
acts  tending  to  defraud  his  creditors.  2 Bl.  Com.  285,  471;  Bur- 
rill’s  Law  Die.  Bankrupt;  4 Inst.  Ch.  63 ; Story’s  Const.  § 1112; 

Cooke’s  Bankrupt  Laws,  Intr.  1.  It  is  derived  from  the  Homan 
law.  Idem.  See  Ogden  v.  Saunders,  12  Wheat.  264-270;  Sturgis 
v.  Crowninshield,  12  Wheat.  273,  275,  280,  306,  310,  314,  335,  369; 
and  same  case  4 Wheat.  122.  By  the  American  law,  bankrupts 
and  bankruptcies  are  not  confined  to  traders.  See  Acts  of  April 
4,  1800;  December  19,  1803;  Aug.  19,  1841;  2 March,  1867; 

James’s  Bankrupt  Law,  1867,  and  notes  ; Taylor’s  Bankrupt  Law  ; 

2 Kent’s  Com.  390;  2 Story’s  Const.  §§  1111-1115;  Stephens’s 
Com.  180,  189.  The  leading  features  of  “ a system  established  by 
law,  as  distinguished  from  ordinary  law  are,  (1),  the  summary  and 
immediate  seizure  of  all  the  debtor’s  property  (or  the  voluntary 
surrender  of  it) ; (2),  the  distribution  of  it  among  the  creditors  in 
general ; and  (3),  the  discharge  of  the  debtor  from  future  liability 
from  debts  then  existing.”  Archbold’s  Law  and  P.  of  Bankruptcy 
(11th  ed.j  b.  2,  pp.  139,  235-237 ; 2 Burr.  829.  The  American 
“system”  seems  to  have  broken  down  the  distinction  between 


114 


BANKRUPTCY,  95,  96. 


[Art.  I.,  Sec.  8, 


“ bankruptcy  ” and  insolvency.  Burrill’s  Law  Lie.,  Bankrupt. 
Sturgis  v.  Crowninshield,  4 Wheat.  122,  194,  198,  203;  2 Kent’s 
Com.  321. 

What  is  95.  Bankruptcy. — The  act,  state,  or  condition  of  a bankrupt. 

bankruptcy?  a status  or  condition  fixed  by  legislative  provision.  (2  Bell’s  Com. 

214.)  A condition  following  upon  the  commission  of  certain  acts 
defined  by  law.  (2  Stephens’s  Com.  191,  192;  Williamson  v. 
Barrett,  13  How.  111.  “A  breaking  up  of  the  bank.”  Spencer  v. 
Billing,  3 Camp.  312.)  In  a looser  sense,  the  stopping  and  break- 
ing up  of  business,  because  a man  is  insolvent,  and  utterly  incapa- 
ble of  carrying  it  on.  (Arnold  v.  Maynard,  2 Story’s  R.  354, 
359.  See  Sturgis  v.  Crowninshield,  4 Wheat.  122, 195,  202).  Bur- 
rill’s  Law  Die.  Bankruptcy.  The  state  of  a man  unable  to  pursue 
his  business,  and  meet  his  engagements,  in  consequence  of  the  de- 
rangement of  his  affairs.  Crabbe’s  Rep.  456,  465.  See  Paschal’s 
Annotated  Digest,  Bankruptcy,  note  278,  p.  141. 


What  right 
have  the 
States  to 
pass  bank- 
rupt laws  ? 


How  far  d< 
state  bank 
rupt  laws 
discharge 
debts  ? 


Money. 

370. 

371. 


96.  The  States  have  authority  to  pass  bankrupt  laws,  provided 
they  do  not  impair  the  obligation  of  contracts,  and  provided  there  be 
no  act  of  Congress  in  force  to  establish  a uniform  system  of  bank- 
ruptcy conflicting  with  such  laws.  Sturgis  v.  Crowninshield,  4 Wh. 
132,  273,  275,  280,  306,  314,  335,  369;  McMillan  v McNeil,  Id.  209. 
But  an  act  of  a State  legislature  which  discharges  a debtor  from  all 
liability  for  debts  contracted  previous  to  his  discharge,  on  his  sur- 
rendering his  property  for  the  benefit  of  his  creditors,  is  invalid,  so 
far  as  it  attempts  to  discharge,  on  the  contracts  with  his  credit- 
ors in  other  States  than  his  residence.  Farmers  & Mechanics’  Bank 
v.  Smith,  6 Wh.  131.  A mere  insolvent  law,  however,  is  not  within 
the  prohibition.  Ogden  v.  Saunders,  12  Wheat.  213,  Mason  v. 
Haile,  Id.  370;  Boyle  v.  Zacharie,  6 Pet.  348,  635 ; Beers  v.  Hough- 
ton, 8 Id.  329 ; Suydam  v.  Broadnax,  14  Id.  67 ; Cook  v.  Moffat,  5 
How.  295.  The  State  bankrupt  laws  do  not  discharge  debts  con- 
tracted to  citizens  of  other  States,  unless  the  contract  be  payable 
within  the  state  of  the  bankrupt.  Beers  v.  Rhea,  5 Tex.  354.  This 
opinion  reviews  the  various  decisions  of  the  supreme  court  of  the 
United  States  upon  the  subject,  and  concurs  with  their  judgments, 
though  it  is  urged  that  the  opinions  have  been  inconsistent. 
See  Story’s  Conflict  of  Laws,  § 338-423.  The  reason  of  this 
power  is  to  prevent  frauds  where  the  parties  or  their  property 
maybe  removed  into  different  States.  (The  Federalist,  No.  32.) 
Story’s  Const.  § 1105. 

The  Bankrupt  Law  of  1841  was  held  to  be  constitutional.  Klein’s 
Case,  1 How.  277.  The  power  of  Congress  is  not  an  exclusive  grant; 
it  may,  therefore,  be  exercised  within  constitutional  limits  by  the 
States.  Sturgis  v.  Crowninshield,  4 Wheat.  122.  See  James’s  Bank- 
rupt Law,  p.  8.  This  book  gives  the  Bankrupt  Law  of  1867,  anno- 
tated. 

[5.]  To  coin  money,  regulate  the  value  thereof,  and 
of  foreign  coin ; and  fix  the  standard  of  weights  and 
measures. 


01.  5.] 


TO  COIN  MONEY,  97-99. 


115 


97.  To  Coin. — To  stamp  and  convert  into  money,  as  a piece  of  What  is 
metal ; to  mint;  in  a more  general  sense,  to  form  by  stamping ; as,  coin? 
to  coin  a medal.  2.  To  make  or  fabricate;  to  invent;  to  originate ; 
as,  to  coffn  a word.  Webster’s  Die.,  Coin. 

“To  Coin  Money,”  clearly  means  to  mould  into  form  a metallic  What  to 
substance  of  intrinsic  value,  and  stamp  on  it  its  legal  value.  The  3^3  “oney  ? 
thing  so  coined  is  itself  “ money , ipse  loquiter ; but  a treasury  note 
is  only  a promise  to  pay  money,  and  at  the  utmost,  can  only  be, 
like  a bank  bill,  or  a bill  of  exchange,  a representative  of  money.  155. 
Griswold  v.  Hepburn,  2 Duvall’s  Ky.  Rep.  29.  The  phrase  means 
“ to  coin  metal  as  the  money  of  the  United  States  ” “They  intend- 
ed that  nothing  else  than  metallic  coin  should  be  money,  or  be  a 
legal  tender,  immutum , as  money.  Id.  33,  34.  “ Currency  ” is  not 

money.  Id.  33,  46,  41. 

The  articles  of  confederation  read  “ To  coin  money  and  emit 
bills  of  credit.”  (Ante,  Art.  IX.,  p.  11.)  The  latter  words  were 
stricken  out  of  a draft  of  the  present  Constitution.  Id.  The  debate 
given  in  full.  Id.  31,32;  Madison  papers,  1343-4-5-6;  Daniel 
Webster;  United  States  v.  Marigold,  9 How,  561 ; Craig  v.  Missouri  12. 
quoted.  Id.  31,  38.  And  see  the  dissentient  opinions,  in  the 
Pennsylvania  legal  tender  cases.  52  Penn.  State  Reports,  1-100. 

A contract  may  be  satisfied  by  a payment  of  what  is  a legal 
tender  at  the  time  the  contract  is  to  be  performed  or  the  debt 
falls  due,  although  in  depreciated  money.  (Davies  Reports,  48.)  99, 100. 
Shollenberger  v.  Brinton,  52  Penn.  (2  P.  F.  Smith),  46.  The 
constitutionality  is  maintained  in  the  opinions  of  a majority  of  the 
judges,  from  pages  51  to  100. 

This  clause  itself  would  carry  along  the  right  to  regulate  the  value 
of  money.  (Madison’s  Letter  to  Cabell,  18th  Sept.,  1828.)  Story’s 
Const.  § 1111. 

9§.  Money. — Is  the  universal  medium  or  common  standard,  by  What  is 
comparison  with  which  the  value  of  all  merchandise  may  be  ascer-  money  ? 
tained ; or  it  is  a sign  which  represents  the  respective  values  of  all  83. 
commodities.  (1  Black.  Com.  216.)  Story’s  Const.  § 1118. 

Our  review  of  the  legislation  of  Congress  has  shown  us  that  What  is  a le- 
Congress  has  uniformly  declared  the  money  so  coined,  and  the  Sal tender  ? 
value  of  which  has  thus  been  regulated,  should  be  received  as  a 
legal  tender  in  payment  of  debts  equally,  whether  due  to  the  82-84. 
government  or  to  private  individuals,  &c.  Metropolitan  Bank  v 99,  100. 

Van  Dyck,  21  N.  Y.  426. 

The  coin  has  no  pledge  of  redemption;  the  intrinsic  value  is  not  Has  coin  a 
a question  ; the  treasury  notes  have  a pledge  for  redemption ; and  pledge  of  re- 
they  may  become  a substitute  for  coin.  (Madison’s  Message.)  emp  lon ' 
Metropolitan  Bank  v.  Van  Dyck,  21  N.  Y.  R.  430,  431. 

99.  And  Regulate  the  Value. — For  a history  of  the  acts  How  regu- 
regulating  the  value  of  money  and  prescribing  legal  tenders,  see late  the 
Metropolitan  Bank  v.  Van  Dyck,  21  N.  T.  Rep.  424.  This  power  value? 
is  limited  to  the  coining  and  stamping  the  standard  of  value  upon 
what  the  government  creates  or  shall  adopt,  and  to  punishing  the 
offense  of  producing  a false  imitation  of  what  may  have  been  so  155 
created  or  adopted.  Fox  v.  Ohio,  5 How.  433. 

This  power  is  exclusively  in  Congress.  Rawle’s  Const.  102. 


116 


TENDER-WEIGHTS,  100-102.  [Art.  I.,  Sec.  8, 


What  are  the 
restrictions 
as  to  legal 
tender  ? 


97. 


84. 


71. 


Is  intrinsic 
value  of  con- 
sequence ? 


97. 


I 

What  is  a 
standard  ? 


What  is  a 
ton? 

101. 

What  is  a 
standard 
pound  of  U. 


How  often  is 
standard 
regulated  ? 


What  is  the 
standard  of 
spirit 
weight? 


100.  There  is  no  express  grant  of  power  to  make  gold  and 
silver,  or  • any  thing  else,  a legal  tender.  Metropolitan  Bank  v. 
Yan  Dyck,  27  N.  Y.  Rep.  426.  But  the  power  has  been  uniformly 
exercised  ever  since  the  foundation  of  the  governmenf,  unques- 
tioned by  any  department  of  the  Federal  and  State  governments. 
This  contemporaneous  construction  is  to  be  received  as  evidence  of 
the  power.  (Martin  v.  Hunter,  1 Wh.  421;  Cohens  v.  Virginia, 
6 Wh.  421 ; Briscoe  v.  The  Bank  of  Kentucky,  11  Pet.  527  ; Moors 
v.  The  City  of  Reading,  21  Penn.  188;  Norris  v.  Clymer,  2 Penn. 
277  ; The  People  v.  Green,  2 Wend.  274;  The  People  v.  Coutant, 
11  Wend.  511.)  Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y.  Rep. 
427-8.  A discretionary  power  must  exist  somewhere  in  every 
government.  Story’s  Const.  § 425;  Anderson  v.  Dunn,  6 Wh. 
204,  220 ; Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y.  Rep.  429. 
The  intrinsic  value  of  the  metal  on  which  money  is  coined  is  of  no 
consequence.  Id.  430. 

Where  a party  deposited  money  with  his  hanker  upon  general 
principles,  it  became  a loan  to  the  bank,  which  fact  is  not  over- 
ruled by  the  word  “gold,”  against  the  amount  on  the  depositor’s 
bank  book.  In  such  cases  a tender  of  United  States  legal  tender 
treasury  notes  is  sufficient.  The  depositor  cannot  demand  gold  as 
his  special  deposit.  Thompson  v.  Riggs,  5 Wallace-. 

101.  “To  Fix  the  Standard  of  Weights  and  Measures.” 
To  Fix  is  to  make  permanent,  to  regulate.  Webster’s  Die.  Fix. 
A standard  is  that  which  is  established  by  authority,  as  the  rule  to 
measure  a quantity,  as  a gallon,  a pound,  or  a weight.  Webster. 
The  States  are  not  expressly  inhibited  from  exercising  this  power ; 
and  in  the  absence  of  Congressional  legislation,  it  has  been  tole- 
rated. Rawle’s  Const.  102  ; Story’s  Const.  § 1122. 

102.  “Weights  and  Measures.” — A “ton”  is  twenty  hundred 
weight;  each  hundred  weight  being  112  pounds.  Act  of  30th 
Aug.,  1842.  1 Brightly’s  Dig.  370,  § 218. 

The  brass  troy  pound  weight,  procured  by  the  Minister  of  the 
United  States  in  London,  in  the  year  1827,  for  the  use  of  the  mint, 
and  now  in  the  custody  of  the  director  thereof,  shall  be  the 
standard  troy  pound  of  the  mint  of  the  United  States,  conformably 
to  which  the  coin  thereof  shall  be  regulated. 

It  shall  be  the  duty  of  the  director  of  the  mint  to  procure  and 
safely  keep  a series  of  standard  weights  corresponding  to  the 
aforesaid  troy  pound,  consisting  of  a one-pound  weight,  and 
the  requisite  subdivisions  and  multiples  thereof,  from  the  hundredth 
part  of  a grain  to  twenty-five  pounds.  And  the  troy  weights 
ordinarily  employed  in  the  transactions  of  the  mint,  shall  be  regu- 
lated, according  to  the  above  standards,  at  least  once  in  every  year, 
under  his  inspection ; and  their  accuracy  tested  annually  in  the 
presence  of  the  assay  commissioners,  on  the  day  of  the  annual 
assay.  Act  of  19th  May,  1838,  4 St.  278;  §§  3,  4 ; 1 Brightly’s 
Dig.  p.  635,  §§  46,  47. 

That  proof  spirit  shall  be  held  and  taken  to  bo  that  alcoholic 
liquor  which  contains  one-half  its  volume  of  alcohol  of  a specific 
gravity  of  seven  thousand  nine  hundred  and  thirty-nine  ten  thou- 


/ 


Cl.  5.]  WEIGHTS  AND  MEASURES,  102.  117 

sandths  (7,939)  at  sixty  degrees  Fahrenheit;  and  the  Secretary  of 
the  Treasury  is  hereby  authorized  to  adopt,  procure,  and  prescribe 
for  use  such  hydrometers,  weighing  and  gauging  instruments, 
meters,  and  other  means  for  ascertaining  the  strength  and  quality 
of  spirits  subject  to  tax,  &c.,  and  to  insure  a uniform  and  correct 
system  of  inspection,  weighing  and  gauging  spirits  subject  to  tax 
throughout  the  United  States,  &c.  Act  of  2d  March,  1867,  14  St. 

481. 

The  following  is  the  first  general  act  of  Congress  which  I find 
on  the  subject  of  weights  and  measures ; and  certainly  it  is  of  suf- 
ficient importance  to  occupy  a place  in  a Manual  of  this  kind : — 

CHAP.  CCCI. — “An  Act  to  authorize  the  use  of  the  Metric  System  of  Act  of  28th 
Weights  and  Measures. 

14  bt.,  ooUf 

Be  it  enacted , <#c.,  That  from  and  after  the  passage  of  this340* 
act  it  shall  be  lawful  throughout  the  United  States  of  America  to  What  is  the 
employ  the  weights  and  measures  of  the  metric  system;  and  no^af^sdand 
contract  or  dealing,  or  pleading  in  any  court,  shall  be  deemed  measures? 
invalid  or  liable  to  objection  because  the  weights  or  measures  ex- 
pressed or  referred  to  therein  are  weights  or  measures  of  the 
metric  system. 

2.  The  tables  in  the  schedule  hereto  annexed  shall  be  recognized  The  metric 
in  the  construction  of  contracts,  and  in  all  legal  proceedings,  as  systeirf- 
establishing,  in  terms  of  the  weights  and  measures  now  in  use  in  ^ha^sched- 
the  United  States,  the  equivalents  of  the  weights  'and  measures  recognized? 
expressed  therein  in  terms  of  the  metric  system ; and  said  tables 
may  be  lawfully  used  for  computing,  determining,  and  expressing 
in  customary  weights  and  measures  the  weights  and  measures  of 
the  metric  system. 


MEASURES  OF  LENGTH.  What  for 

measuring: 

METRIC  DENOMINATIONS  AND  VALUES. 

length  ? 

EQUIVALENTS  IN  DENOMINATIONS  IN  USE. 

Myr iameter 1 0,000  meters. 

Kilometer 1,000  meters. 

Hectometer 100  meters. 

Dekameter 10  meters. 

Meter 1 meter. 

Decimeter ii iJ  of  a meter. 

Centimeter TtTo  of  a meter 

Millimeter TT)Vo  of  a meter. 

6.2137  miles. 

0.62137  miles,  or  3280  feet  and  ten  inches. 
328  feet  and  1 inch. 

393.7  inches. 

39.37  inches. 

3.937  inches. 

0.3937  inches. 

0.0394  inches.  (0.0393!) 

MEASURES  OF  SURFACE.  Surface. 

METRIC  DENOMINATIONS  AND  VALUES. 

EQUIVALENTS  IN  DENOMINATIONS  IN  USB.  For  m6a- 

snrAq  r»f  mif. 

Hectare 10,000  square  meters. 

Contare 1 square  meter. 

2.471  acres.  faG0  ? 

119.6  square  yards. 

1550  square  inches. 

118  WEIGHTS  AND  MEASURES,  102,  103.  [Art.  I.,  Sec.  8, 


Capacity. 


For  mea- 
sures of 
capacity. 


Weights. 


What  stand- 
ard of 
weights  ? 


What  power 
as  to  coun- 
terfeiting ? 

What  is 
counterfeit- 
ing? 


MEASURES  OF  CAPACITY 


METRIC  DENOMINATIONS  AND  VALUES. 

EQUIVALENTS  IN  DENOMINATIONS 
IN  USE. 

Names. 

Number  of 
liters. 

Cubic  measure. 

Dry  Measure. 

Liquid  or  Wine 
Measure. 

Kiloliter,  or  stere 

Hectoliter 

Dekaliter 

Liter  

Deciliter 

Centiliter 

Milliliter 

1,000 

100 

10 

1 

tV 

1 00 
—I— 
1000 

1 cubic  meter 

U)  of  a cubic  meter... . 

10  cubic  decimeters. . . 

1 cubic  decimeter .... 

1 of  a cubic  decimeter 
'1  0 

10  cubic  centimeters. . 
1 cubic  centimeter. . . 

1.308  cubic  yards 

2 bushels  & 3.35  pecks 

9.08  quarts 

0.908  quarts 

0.1022  cubic  inches.. . . 
0.6102  cubic  inches.... 
0.061  cubic  inches 

264.17  gallons. 
26.417  gallons. 
2.6417  gallons. 
1.0567  quarts. 
0.845  gills. 
0.388  fluid  ozs. 
0.27  fluid  dr’s. 

WEIGHTS. 


METRIC 

DENOMINATIONS  AND  VALUES. 

EQUIVALENTS  IN  DENOMI- 
NATIONS IN  USE. 

Weight  of  what  quantity 

Names. 

No.  of  Grams. 

of  water  at  maximum 

Avoirdupois  weight. 

density. 

Millier  or  Tonneau. 

1,000,000 

1 cubic  meter 

2204.6  pounds 

Quintal 

100,000 

1 h ec.tol  i ter 

220.46  pounds 

Myriagram 

10,000 

1 0 liters 

22.046  pounds. 

Kilogram  or  kilo. . . . 

1,000 

1 liter 

2.2046  pounds. 

Hectogram 

100 

1 deciliter 

3.5274  ounces. 

Dekagram 

10 

10  cubic  centimeters 

0.3527  ounces. 

Gram 

1 

1 cubic,  centimeter 

15.432  grains. 

Decigram 

_L_ 
1 0 

_1__  of  a cubic  centimeter. 

1.5432  grains. 

Centigram 

Too' 

10  cubic  millimeters 

0.1543  grains. 

Milligram 

To oo 

1 cubic  millimeter 

0.0154  grains. 

[6.]  To  provide  for  the  punishment  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States. 

103.  Counterfeiting.  [Law  Latin,  Contrafadum.']  That  which 
is  made  in  imitation  of  something,  but  without  lawful  authority,  or 
contrary  to  law,  and  with  a view  to  pass  the  false  for  the  true. 
(Wharton’s  Lex.)  Burrill’s  Law  Die.,  Counterfeiting. 

The  making  in  the  semblance  of  true  gold  or  silver  coin  any 
coin  having  in  its  composition  a less  proportion  of  the  precious 
metal  than  is  contained  in  the  true  coin,  with  intent  to  pass  the 
same;  or  the  altering  of  coin  of  lesser  value,  so  as  to  make  it  re- 
semble coin  of  the  higher  value.  Paschal’s  Annotated  Digest, 


Cl.  6,  7.]  COUNTERFEITING,  P.  O.,  103,  104. 


119 


Arts.  2113,  2114.  See  the  Act  to  Punish,  1 Brightly’ s Dig.,  p.  215, 

Art.  VII,  §§  73-79 

Whether  Congress  has  power  to  provide  for  the  punishment  of 
passing  counterfeit  coin,  has  been  doubted.  This  power  is  cer-  Have  the 
tainly  possessed  by  States.  Metropolitan  Bank  v.  Van  Dyck,  States  pcmef‘ 
27  N.  Y.  420.  But  Congress  may,  without  doubt,  provide  for  counterl'eit- 
punishing  the  offense  of  bringing  into  the  United  States,  from  aing? 
foreign  place,  false,  forged,  and  counterfeit  coins  made  in  the 
similitude  of  coins  of  the  United  States ; and  also  for  the  punish- 
ment of  the  offense  of  uttering  and  passing  the  same.  United 
States  v.  Marigold,  9 How.  560 ; Metropolitan  Bank  v.  Yan  Dyck, 

27  N.  Y.  Rep.  450.  In  Fox  v.  Ohio,  5 How.  435,  Mr.  Justice 
McLean  dissented ; and  insisted  that  Congress  has  the  right  (and 
has  exercised  it)  to  punish  the  uttering  of  counterfeit  coin ; and 
therefore  the  States  have  not  the  same  power. 

The  right  to  punish  the  counterfeiting  of  the  public  coin  is  vested 
exclusively  in  Congress ; and  it  cannot  be  concurrently  exercised 
by  the  States ; and  such  a State  law  is  void.  Mattison  v.  The  State 
of  Missouri,  3 Mo.,  421. 

In  Fox  v.  The  State  of  Ohio,  this  court  have  taken  care  to  point 
out  that  the  same  Act  might,  as  to  its  character,  tendencies,  and 
consequences,  constitute  an  offense  against  both  the  State  and  the 
Federal  governments,  and  might  draw  to  its  commission  the  penal- 
ties denounced  by  either,  as  appropriate  to  its  character  in  reference 
to  each.  (Fox  v.  Ohio,  5 How.  433.)  United  States  v.  Marigold, 

9 How.  560;  Story’s  Const.  § 1123,  note  4. 

And  see  United  States  v.  King,  5 McLean,  208;  United  States  v. 

Burns,  Ibid.  23 ; United  States  v.  Brown,  4 Ibid,  142 ; United 
States  v.  Morrow,  4 W.  C.  C.  R.  733;  United  States  v.  Gardner, 

10  Pet.  618 ; Commonwealth  v.  Hutchinson,  2 Pars.  354 ; United 
States  v.  Hutchinson,  7 Penn.  Law  J.  365. 

[7.]  To  establish  post-offices  and  post-roads. 

104.  “Establish”  is  the  ruling  term;  post-offices  and  post- What  is  tne 
roads  are  the  subjects  on  which  it  acts.  The  power  is  thereby  just  import 
given  to  fix  on  towns,  court  houses,  and  other  places  throughout  words*5  and 
our  Union,  at  which  there  should  be  post-offices,  the  routes  by  the  extent 
which  mails  should  be  carried  from  one  post-office  to  another,  to  fix  ofthe  grant? 
the  rate  of  postage,  and  to  protect  the  post-offices  and  mails  from 
robbery.  (President  Monroe’s  Message,  4th  May,  1822,  pp.  24-27.) 

Story’s  Const.  § 1129,  note  2,  of  third  edition. 

The  word  “Establish,”  in  other  parts  of  the  Constitution,  is  8,  13,  93-95. 
used  in  a general  sense.  Thus^  “ to  establish  justice  “ and  estab-  *9^243,  245. 
lish  this  Constitution;”  “to  establish  a uniform  rule  of  natural-  establish, 
ization  and  system  of  bankruptcies;”  “such  inferior  courts  as 
Congress  may  ordain  and  establish “the  establishment  of  this 
Constitution  ;”  “an  establishment  of  religion.” 

The  clear  import  of  the  word  is,  to  create,  form,  and  fix  in  a 101. 
settled  manner.  Story’s  Const.  § 1131. 

The  controversy  has  been  between  the  power  to  make  the  roads 
and  the  power  to  fix  on  and  declare  them  mail  routes,  after  the  ex- 


120 


[Art.  I.,  Sec.  8, 


POST-OFFICES,  104,  105. 

tending  settlements  have  opened,  established,  adopted,  or  built  roads 
and  paths.  See  the  subject  fully  discussed  in  Story’s  Const,  chap. 
XVIII.  § 1124-1150;  and  Notes  to  Third  Edition;  and  1 Kent’s 
Com.  Lect.  XII.  267-268. 

The  Confederate  Constitution  added  this  sentence : “ But  the 

expenses  of  the  Post-Office  Department,  after  the  first  of  March,  in 
the  year  of  our  Lord  eighteen  hundred  and  sixty-three,  shall  be 
paid  out  of  its  own  revenues.”  Paschal’s  Annotated  Digest,  88. 

The  first  year’s  history  of  the  insurgent  government  demon 
strated  the  impracticability  of  the  restriction. 

What  are  105.  Post-Offices. — As  understood,  under  the  Confederation, 
post-offices  ? and  since  carried  out  by  statutes,  and  in  practice,  post-offices  may 
be  defined  to  be  the  General  Post-Office  at  Washington,  presided  over 
by  one  of  the  President’s  advisers,  called  the  Postmaster-General. 
This  office  was  first  held  by  Dr.  Franklin,  in  1775.  (Story’s  Const.  § 
1126,  note  1.)  It  is  now  an  immense  palace  (with  over  a hundred 
rooms),  erected  and  owned  by  the  government,  wherein  the  whole 
of  the  postal  service  of  the  United  States  is  superintended  and  the 
business  directed,  and  where  all  contracts  for  mail  service  are  let, 
and  the  accounts  therefor  are  settled.  The  Postmaster-General  is 
assisted  by  three  Assistant  Postmaster-Generals,  an  Auditor,  and 
several  hundred  clerks.  Every  postmaster  in  the  United  States  is  a 
deputy  to  the  Postmaster-General.  There  are  numerous  route  agents 
and  detectives  : and  every  line  of  post-roads  is  well  known  and  care- 
fully watched.  Every  place  in  the  United  States,  whether  in  office, 
house,  tent,  booth,  boat,  vessel,  car,  wagon,  or  box,  where  the 
mails  are  opened  and  the  mail  matter  delivered,  is  called  a “post 
office,”  and  the  sworn  and  bonded  deputy  who  opens  and  delivers 
19, 35, 169.  the  written  and  printed  matter  received,  is  called  a “ postmaster  ;” 
although  many  of  them  might  be  called  “ postmistresses,”  as 
ladies  are  frequently  appointed  of  late  years. 

Describe  the  The  first  post-office  ever  established  in  America  seems  to  have 
postal  ser-  been  under  an  act  of  Parliament  in  1710.  (Dr.  Lieber’s  Encyc. 
Vlce*  Amer.,  Posts.)  In  England  the  first  regular  mode  adopted  was  in 

1642.  (Malkin’s  Introductory  Letter.)  In  1790  there  were  75 
post-offices  in  the  United  States;  1,875  miles  of  post-roads;  the 
amount  of  postage  was  $37,935.  In  1828  there  were  7,530  post- 
offices  ; 115,176  miles  of  post-roads,  and  the  amount  of  postage  was 
$1,659,915.  (The  American  Almanac  Repository,  Boston,  1830, 
p.  217 ; American  Almanac  for  1832,  p.  134 ; Dr.  Lieber’s  Encyc. 
Americana,  Article  Posts.)  Story’s  Const.  § 1125  (3d  ed.,  note  1.) 

In  1866  there  were  23,828  post-offices;  180,921  miles  of  post- 
roads;  amount  of  postage,  $14,386,986.21. 

For  the  rates  of  foreign  postage,  and  monthly  valuable  statistics, 
see  “ United  States  Mail  and  Post-Office  Assistant,”  New  York. 

The  rates  for  letters  are  three  cents  for  every  half  ounce,  in  the 
United  States.  All  mail  matter  is  charged  by  weight. 

What  im  It  is  questionable  whether  the  government  could  peaceably  re- 
provement  turn  to  the  unequal  charges  of  our  fathers.  It  can  be  hoped,  that 
suggest-  80110 e public  man  may  yet  develop  the  idea,  that  a system  of  carry- 
ed?  ing  the  mails  by  weight  would  be  practicable ; more  just  to  the  car- 

riers ; more  economical  to  the  government ; and  immensely  bene- 


01.  7 8.]  p.  E. — SCIENCE — AETS,  106,  107.  121 

ficial  to  the  people,  as  thereby  the  carrying  need  not  to  be  profess- 
edly limited  to  paper ; but  (like  our  immense  express  companies, 
which  first  forced  upon  the  government  the  weight  system  of 
tariffs,)  every  thing  might  be  carried  and  charged  for  by  the  ounce, 
with  a direct  responsibility  upon  the  government  for  safe  delivery. 

To  the  44  regulations  ” of  rates  may  be  added  the  volume  of 
laws  and  regulations  sent  out  every  year,  which  establish  “post- 
offices  and  post-roads,”  and  regulate  the  service  and  punish  infrac- 
tions of  the  law. 

106,  “Post  Roads.” — Every  railroad,  turnpike,  wagon-road,  What  are 
path,  river,  creek,  ocean,  sea,  gulf,  lake,  and  pond,  over  which  post-roads  ? 
mails  are  transported,  may  be  denominated  post-roads. 

Every  person  and  corporation  engaged  in  carrying  and  deliver-  who  are 
ing  the  mails,  is  called  a mail  carrier  or  contractor ; and  they  all  mail  car- 
act  under  official  responsibility.  It  may  at  once  be  deduced  that  riers  ? 
the  books,  maps,  reports  and  information  to  be  gathered  from  the 
General  Post-Office  Department  is  the  most  valuable  to  the  student 
of  geography  in  the  United  States. 

Among  the  “regulations”  are  the  rates  for  carrying  mail- What  are  the 
matter,  which,  in  1846,  were  changed  from  the  senseless  method  ™tes  of 
of  charging  the  “single  letter”  at  25  cents  and  the  4 ‘ double  let- dirges? 
ter  ” in  proportion,  regardless  of  weight  or  value,  to  the  common 
sense  tariff  of  weights.  The  present  laws  regulating  post-offices 
and  post-roads,  the  rates  of  postage,  the  franking  privilege,  and  the 
whole  mail  service,  will  be  found  in  books  issued  by  the  Postmas- 
ter-General, and  in  Brightly ’s  Dig.  pp.  363  to  383  : see  also  2 Bright- 
ly’s  Dig.  750  to  800. 

It  is  under  this  power  that  Congress  has  adopted  the  mail  regula-  What  are 
tions  of  the  Union,  and  punishes  all  depredations  on  the  mail,  the  powers 
Sturtevants  v.  City  of  Alton,  3 McLean,  393.  The  power  to  estab-  0 onfr^ss * 
lish  post-roads  is  restricted  to  such  as  are  regularly  laid  out  under  , 
the  laws  of  the  several  States.  Cleveland,  Painesville  and  Ashtabula  U 
R.  R.  Co.  v.  Franklin  Canal  Co.,  Pittsburg  L.  J.,  24th  December, 

1853 ; Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  18  How. 

421;  Dickey  v.  Turnpike  Road  Co.,  7 Dana,  113;  1 Kent’s  Com.  281, 

282. 

But  under  this  power  Congress  may  make,  repair,  keep  open,  and  78-80. 
improve  post-roads.  Dickey  v.  Turnpike  Road  Co.  7 Dana,  113. 

For  conflicting  views,  see  1 Kent’s  Com.  11th  ed.  p.  268,  note  c. 

Nothing  which  tends  to  facilitate  the  intercourse  between  the 
States,  can  be  deemed  unworthy  of  the  public  care.  Federalist, 

No.  42. 

[8.]  To  promote  the  progress  of  science  and  thewhatisthe 
useful  arts,  by  securing,  for  limited  times,  to  authors  authors  and° 
and  inventors  the  exclusive  right  to  their  respective  mventors? 
writings  and  discoveries. 

107.  To  Promote  [ Promoveo , pro  and  moveo , to  move]  is  here  To  promote 
used  to  advance,  foster,  and  encourage,  by  all  the  liberal  legislation 

which  can  aid.  Worcester’s  Die.  Promote. 

13 


122 


Progress. 


Define 

science. 


373. 


Arts. 


Distinguish 
between 
science  and 
art. 


Define  se- 
cure. 


Why  a limit- 
ed time  ? 


Who  is  an 
author? 


How  are 
copy-rights 
secured  ? 


SCIENCE — AUTHORS,  107.  [Art.  I,  Sec.  8, 


The  Progress  [Progressus,  Progredior , advancement],  that  is 
the  growth,  advancement  of,  and  constant  progression.  Wore. 
Die.  Progress. 

Science.  [Scientia,  from  Scio , Scire  to  know.]  Knowledge.  It 
is  used  here  in  the  sense  of  Abstract,  Mental,  Mathematical, 
Natural,  and  Physical  Science.  (See  the  whole  definitions  and 
synonyms,)  Webster’s  Die.  Science. 

As  practically  illustrated  by  our  legislation,  the  word  has  no 
limitation  in  the  whole  range  of  literature  and  knowledge,  since  all 
authors  have  a right  to  obtain  copy-rights  for  their  books,  maps, 
pictures,  and  every  thing  printed  and  first  published  as  such  in  the 
United  States.  Clayton  v.  Stone,  2 Paine,  383  ; Jollie  v.  Jaques, 
1 Blatch.  618 ; Binns  v.  Woodruff,  4 W.  C.  C.  48  ; Wheaton  v. 
Peters,  8 Wheat.  591. 

“ And  Useful  Arts.” — Art  [ Ars , Artis].  The  power  of  doing 
something  not  taught  by  nature.  Worcester’s  Die.  Art. 

This  word  is  also  intimately  connected  with  science. 

The  distinction  between  Science  and  Art  is,  that  Science  is  a 
body  of  principles  and  deductions,  to  explain  the  nature  of 
some  matter.  An  Art  is  a body  of  precepts,  with  practical 
skill  for  the  completion  of  some  work.  Science  teaches  us 
to  know ; an  Art  to  do.  In  Art  truth  is  means  to  an  end ; in 
Science  it  is  the  only  end.  Hence  the  practical  arts  are  not  to 
be  classed  among  the  sciences.  (Whewell.)  Wore.  Die.  Science. 
Science  never  is  engaged,  as  art  is,  in  productive  application. 
(Kearslake)  Worcester. 

By  Securing. — [ Securus , se  and  cura,  or  without  care.]  Here 
used,  by  protecting  in  the  exclusive  use  of;  to  make  certain;  to 
put  beyond  hazard ; to  assure;  to  insure;  to  guaranty.  Worces- 
ter’s Die.  Secure. 

“ For  a Limited  Time.” — Not  perpetually ; but  for  a reasonable 
time.  The  Acts  of  Congress  have  generally  fixed  the  limit  of 
fourteen  years,  which  was  the  period  in  England  when  the  Consti- 
tution was  adopted.  2 Bl.  Com.  406,  407,  Christian’s  notes,  5,  85 ; 
Millar  v.  Taylor,  4 Burroughs,  2303  ; Rawle’s  Const,  ch.  9,  pp.  105, 
106 ; 2 Kent’s  Com.  Lect.  36,  pp.  299-306.  The  case  in  Burroughs, 
2303,  exhausts  the  whole  ancient  learning  on  the  subject  of  copy- 
rights. It  is  a grant  by  the  government  to  the  author  of  a new 
and  useful  invention,  of  the  exclusive  right  for  a term  of  years,  the 
practising  that  invention.  Curtis  on  Patents,  p.  LX. 

“Useful,”  utility , has  been  long  exploded  as  an  unnecessary  and 
superfluous  condition.  Millar  v.  Taylor,  4 Bur.,  2303 ; Hall’s 
New  York  edition,  182.  Puffendorf,  Lib.  4 c.  5,  p.  378,  note  1. 

“ To  Authors.”  [. Auctor J He  to  whom  any  thing  owes  its 

origin  ; originator ; creator ; maker ; first  cause.  One  who  com- 
pletes a work  of  science  or  literature ; the  first  writer  of  any  thing 
distinct  from  a translator  or  compiler.  Wore.  Die.  Author. 

In  the  United  States,  an  author  has  no  exclusive  property 
in  a published  work,  except  under  some  act  of  Congress.  Whea- 
ton v.  Peters,  8 Pet.  591 ; Jeffery s v.  Boosoy,  30  Eng.  L.  & Eq.  1 ; 
Dudley  v.  Mayhew,  3 Comstock,  12.  It  had  been  decided  in  Great 


Cl.  8.] 


AUTHORS — INVENTORS,  107,  108. 


123 


Britain  before  the  revolution,  to  be  a common  law  right.  Sto- 
ry’s Const.  § 1152.  Overruled.  Dudley  v.  Mayhew,  3 N.  Y.  (3 
Const.)  12. 

The  power  is  confined  to  authors  and  inventors ; and  cannot  be 
extended  to  the  introducers  of  new  works  or  inventions.  Story’s 
Const.  § 1153.  See  Federalist,  No.  43;  1 Tuck.  Black.  Com.  App. 

265,  266;  Hamilton’s  Report  on  Manufactures,  § 8,  pp.  235,  236; 

Livingston  v.  Van  Ingen,  9 John.  507  ; Journal  of  Convention,  260, 

261,  327-329. 

iO§.  And  Inventors.”  [ Invenio ; in,  and  venio , to  come.]  Who  are 

To  invent  is  to  devise  something  new,  not  before  made,  or  inventors ! 
to  modify  and  combine  things  before  made  or  known,  so  as  to  form 
a new  whole.  Wore.  Die.  Invent.  One  who  invents : a con- 
triver. This  right  was  saved  out  of  the  statute  of  monopolies  in 
the  reign  of  King  James  the  First,  and  has  ever  since  been  allowed 
for  a limited  period,  not  exceeding  fourteen  years.  2 Black.  Com. 

406,  407  ; Christian’s  notes,  5,  8 ; 2 Kent’s  Com.  Lect.  36,  pp.  306- 
315. 

Patents  are  entitled  to  a liberal  construction,  since  they  are  For  what  are 
not  granted  as  restrictions  upon  the  rights  of  the  community,  but 
“ to  promote  the  progress  of  science  and  the  useful  arts.”  Blan-  gran  e 
chard  v.  Sprague,  3 Sumner,  535 ; Grant  v.  Raymond,  6 Pet.  218 ; 

Hogg  v.  Emmerson  6 How.  486;  Brooks  v.  Fisk,  15  Id.  2 2 3.  373. 

The  power  of  Congress  to  legislate  upon  the  subject  of  patents  i3 
plenary,  by  the  terms  of  the  Constitution ; and  as  there  are  no  re- 
straints on  its  exercise,  there  can  be  no  limitation  of  its  right  to 
modify  them  at  its  pleasure,  so  that  they  do  not  take  away  the 
rights  of  property  in  existing  patents.  McClurg  v.  Kingsland,  1 
Id.  206.  Evans  v.  Eaton,  3 Wheat.  545  ; s.  C.  7 Wheat.  356 ; 

Evans  v.  Hettish,  7 Wheat.  453  ; Blanchard  v.  Sprague,  3 Sumner, 

541.  Therefore,  Congress  has  the  power  to  grant  the  extension 
of  a patent  which  has  been  renewed  under  the  act  of  1836. 

Bloomer  v.  Stollev,  5 McLean,  158.  Its  power  to  reserve  rights 
and  privileges  to  assignees,  on  extending  the  term  of  a patent,  is 
incidental  to  the  general  power  conferred  by  the  Constitution. 
Blanchard’s  Gun-Stock  Turning  Factory  v.  Warner,  1 Blatch.  258. 

Perhaps  there  is  nothing  which  has  tended  more  to  the  rapid 
development  of  American  genius,  character,  and  improvement,  than 
the  laws  securing  to  authors  and  inventors  their  rights.  The 
Patent  Office  is,  perhaps,  the  most  commodious  house  in  America. 

There  are  collected  the  applications,  specifications,  drawings, 
and  models  of  the  inventors,  whose  works  have  dispensed  with 
the  hand-labor  of  more  millions  than  the  world  now  contains. 

From  this  office  issues  annually  a report  of  the  current  inven- 
tions. No  lover  of  the  development  of  his  country  should  visit 
Washington  without  giving  himself  a week  to  examine  the  won- 
derful mysteries  of  the  Patent  Office. 

For  a most  able  treatise  upon  the  law  of  patents,  the  reader  is 
referred  to  the  very  able  work  of  Curtis  on  Patents,  1867  ; to  the 
“ Patent  Laws,”  issued  by  the  Patent  Office ; 1 Brightly’s  Dig. 

Copy  Right,  p.  193;  Patents,  721,  and  accurate  notes;  2 Bright- 
ly, 353. 


I 


» 


124  TRIBUNALS — PIRACY,  109-111.  [Art.  I.,  Sec.  3, 

inferior  tri-  [9,]  To  constitute  tribunals  inferior  to  the  Supreme 

bunals.  L J 

374-  Court. 


Do  State  de- 
cisions about 
real  proper- 
ty control  ? 


What  tribu- 
nals have 
been  estab- 
lished under 
this  power  ? 


Define  the 
special 
power  on 
crimes. 


What  is  to 
define  ? 


129. 

111. 


109.  To  Constitute  here  means  to  create  and  organize,  defin- 
ing the  jurisdiction. 

Tribunal  [Lat.  Tribunal]  Bench  of  a judge ; hence  courts  of 
justice,  subject  to  the  superior  jurisdiction  of  the  Supreme  Court. 
Webster’s  Die.,  Tribunal. 

See  American  Insurance  Company  v.  Canter,  1 Pet.  546.  This 
power  affords  no  pretext  for  abrogating  any  established  law  of 
property,  or  for  removing  any  obligation  of  her  citizens  to  submit 
to  the  rule  of  the  local  sovereign.  Suydam  v.  Williamson,  24  How. 

433.  Where  any  principle  of  real  property  has  been  settled  in  a 
State  court,  the  same  rule  will  be  applied  by  this  court.  (Jackson 
v.  Chew.  12  Wh.  162  ; Beauregard  v.  New  Orleans,  18  How.  497); 
Suydam  v.  Williamson,  24  How.  432,  434.  Even  to  the  over-ruling 
of  our  decisions,  which  have  not  been  followed  by  the  State  courts. 
(Arguello  v.  The  United  States,  18  How.  539  ; League  v.  Egery,  24 
Id.  265-6;  Foote  v.  Egery,  Id.  268);  Suydam  v.  Williamson,  Id. 

434.  In  the  last  cases,  we  followed  the  interpretation  of  the 
Supreme  Court  of  Texas,  rather  than  our  own,  upon  the  4th  article 
of  the  National  Colonization  Law  of  Mexico.  Suydam  v.  William- 
son, 24  How.  434.  In  a case  of  conflict  of  jurisdiction  between  the 
court  of  a State  and  that  of  the  United  States,  that  which  first 
attaches  should  hold.  Taylor  v.  Carryl,  20  How.  583. 

The  tribunals  which  have  been  established  under  this  power  are 
the  Circuit  Courts  and  the  District  Courts  of  the  United  States, 
between  which  have  been  divided  the  controversies  between  liti- 
gants. See  Brightly’s  Digest,  pp.  124  to  129,  228  to  231. 

And  to  these  may  properly  be  added  the  court  of  claims,  which 
has  a special  limited  jurisdiction  in  certain  suits  against  the  United 
States,  and  the  commissions  and  tribunals  created  at  different 
times  for  the  trial  of  certain  land  claims  arising  under  the  treaties 
with  France,  Spain,  and  Mexico. 

[10.]  To  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the 
law  of  nations. 

110.  To  define  is  to  give  the  limits  or  precise  meaning  of  a 
word  or  thing  in  being;  to  make,  is  to  call  into  being.  Congress 
has  power  to  define,  not  to  make,  the  laws  of  nations ; but  Congress 
has  the  power  to  make  rules  for  the  government  of  the  army  and 
navy.  James  Speed,  Attorney -General,  upon  the  right  to  try  by 
Military  Commission,  the  conspirators  to  murder  President  Lincoln, 
July,  1865,  p.  4. 


ilow  has  1 1 1 . To  punish,  in  this  sentence,  is  to  inflict  the  penalty  of 
Caress  dc-  the  law,  which,  in  cases  of  piracjr,  is,  b}r  the  law  of  nations,  death. 

Had  Congress  simply  declared  that  piracy  should  be  punished  with 
110.  death,  the  offense  would  have  been  sufficiently  defined.  Congress 
may  as  well  define  by  using  a word  of  known  and  determinate 
meaning,  as  by  an  express  enumeration  of  all  the  particulars  in- 


01.  9,  10.] 


FELONY — SEAS,  112-114. 


125 


eluded  in  that  term.  But  it  was  intended  not  merely  to  define  37g 

piracy  as  known  to  the  la,w  of  nations,  but  to  enumerate  what, 
crime  in  the  national  code  should  be  deemed  piracy.  And  so  the 
power  has  been  practically  expounded  by  Congress.  (United  States 
y.  Smith,  5 Wheat.  153-163.)  Story’s  Const.  § 1159;  1 Stat.  113, 

3 Stat.  600. 

112.  “Piracy”  is  robbery  or  forcible  depredation  on  the  high  What  is  pi- 
seas,  without  lawful  authority,  and  done,  animo  furandi , in  the  racY ? 
spirit  and  intention  of  universal  hostility.  1 Kent’s  Com.  183  ; 

Story’s  Const.  § 1160.  The  acts  which,  if  committed  upon  land, 
would  have  amounted  to  felony  there.  2 East.  PI.  of  the  Crown,  796. 

It  is  the  same  offense  at  sea  with  robbery  on  land.  1 Kent’s  Com. 

183  ; Wharton’s  Am.  Crim.  Law,  §§  2816-2855.  The  crime  of  piracy 
is  defined  by  the  law  of  nations  with  reasonable  certainty.  United 
States  v.  Smith,  5 Wh.  153.  And  see  Story’s  Const.  § 1158,  1159; 

The  Federalist,  No.  4;  Rawle  on  the  Const.,  ch.  9,  p.  107;  2 A pirate? 
Elliott’s  Debates,  389,  390.  A pirate  is  a rover  and  robber  upon 
the  sea,  an  enemy  to  the  human  race.  Cowel;  Webster;  3 Inst. 

113;  Burrill’s  Daw  Die.,  Pirate;  4 Bl.  Com.  71-73.  Piracy  is 
defined  by  Confess  in  the  Acts  13  April,  1790,  1 Stat.  113 ; and  15 
May,  1820,  3 Stat.  600.  Brightly ’s  Dig.  207,  208. 

113.  Felony  comprises  every  species  of  crime  which  occa-  What  is  fel- 
sioned,  at  common  law,  the  forfeiture  of  lands  and  (or)  goods.  ony  ? 

All  offenses  which  are  capital,  and  some  which  are  not  capital. 

(Co.  Litt.  391 ; 2 Black.  Com.  93-98;)  Story’s  Const.  192-194,  1161. 192, 198‘ 
Felony  is  a loose  term,  and  needs  to  be  defined.  (Federalist, 

No.  42;  Elliott’s  Debates,  389,  390);  Story’s  Const.  § 1160; 

Burrill’s  Law  Die.,  Felony,  where  there  are  many  learned  cita- 
tions of  original  authors.  Woodeson’s  Lee.  306. 

Felony  on  the  high  seas  seems  not  to  be  of  a technical  common  What  is  fel- 
law,  but  of  civil  law  definition.  (United  States  v.  Smith,  5 Wheat.  onyon  tlie 
153,  159  ; 3 Inst.  112  ; Co.  Litt.  391,  a) ; Story’s  Const.  1162.  hlgh  seas  * 

The  Acts  of  26  March,  1804,  2 Stat.  290  ; 3 March,  1825,  4 St. 

115  ; 3 March,  1835,  4 St.  775  ; 8 Aug.  1846,  9 St.  73,  all  define 
and  punish  felony.  1 Brightly’s  Dig.  208-211. 

114.  “High  Seas”  [Altum  mare.']  Not  only  the  waters  of  the  Whataretha 
ocean,  which  are  out  of  sight  of  land,  but  the  waters  on  the  sea-coast,  high  seas  ? 
below  low-water  mark,  whether  within  the  territorial  boundaries 

of  a nation  or  of  a domestic  State.  (United  States  v.  Pirates,  5 
Wheat.  184,  200,  204,  206;  United  States  v.  Wilberger,  5 Wheat,  76, 

94).  Story’s  Const.  § 203,  1164.  And  see,  4 Black.  Com.  110  ; Con- 
stable’s Case,  5 Co.  Rep.  106;  3 Inst.,  13 ; 2 East’s  P.  C.  802,  803; 

Hale  in  Harg.  Law  tracts,  ch.  4,«p.  10  ; 1 Hale’s  P.  C.,  423,  424. 

As  to  the  States  of  the  Union,  “ High  Seas  ” may  here  be  taken 
to  mean  that  part  of  the  ocean  which  washes  the  sea-coast,  and  is 
within  the  body  of  any  county,  according  to  the  common  law  ; and 
as  to  foreign  nations,  any  waters  on  their  seacoast  below  low-water 
mark.  (Rawle’s  Const,  ch.  9,  p.  147  ; 3 Id.  439,  441;  Sergt’s.  Const, 
ch.  28,  [ch.  30]  ; 1 Kent’s  Com.  Lect,  17,  p.  342 ; United  States  v» 

G-rush,  5 Mason’s  R.  290);  Story’s  Const.  § 1164;  1 Kent’s  Com. 


[Art.  I.,  Sec.  8. 


126  OFFENSES,  114,  115,  116. 


397  ; "Waring  v.  Clark,  5 How.  453,  462;  Pyrodus  v.  Howard,  7 
Pet.  342,  324 ; Howard  v.  Ingersoll,  13  How.  421,  424 ; Schooner 
Harriet,  1 Story’s  It.  259  Jones  v.  Root,  6 Mass.  435  ; The  case 
of  Waring  v.  Clarke,  5 How.  451-504,  exhausts  the  whole  learning 
on  the  subject.  Howard  v.  Ingersoll,  13  How.  421-424;  Angel 
on  Tide-waters,  ch.  3,  p.  53 ; Id.  ch.  1,  pp.  15-34. 


What  are  115.  “OFFENSES  AGAINST  THE  LAW  OF  NATIONS.” — Many  of  the 
offenses  ♦ offenses  against  the  law  of  nations,  for  which  a man  may,  by  the  laws 
hwofna-6  war>  l°se  or  his  property,  are  not  crimes.  It  is 

tions  ? an  offense  against  the  laws  of  nations  and  of  war  to  break  a lawful 

192-124.  blockade,  to  hold  communication  or  intercourse  with  the  enemy,  to 
act  as  spy  (is  an  offense  against  the  laws  of  war,  and  the  pun- 
ishment for  which,  in  all  ages,  has  been  death) ; to  violate  a flag  of 
truce,  to  unite  with  banditti,  jayhawkers,  guerillas,  or  any  other 
217-223.  unauthorized  marauders.  And  yet  these  are  not  crimes. 

Some  of  the  offenses  against  the  laws  of  war  are  crimes,  and 
Are  all  offen-  some  not.  Because  they  are  crimes,  they  do  not  cease  to  be 
Bes crimes?  0ffenSes  against  those  laws;  nor  because  they  are  not  crimes 
or  misdemeanors  do  they  fail  to  be  offenses  against  the  laws  of 
252-255.  war.  Murder  is  a crime,  and  the  murderer,  as&such,  must  be 
proceeded  against  in  the  form  and  manner  prescribed  in  the 
Constitution ; in  committing  the  murder  an  offense  may  also 
have  been  committed  against  the  laws  of  war.  For  that  offense  he 
must  answer  to  the  laws  of  war,  and  the  tribunals  legalized  by 
that  law. 

255.  There  is,  then,  an  apparent  but  no  real  conflict  in  the  constitu- 
tional provisions.  Offenses  against  the  laws  of  war  must  be  dealt 
with  and  punished  under  the  Constitution  as  the  laws  of  war,  they 
being  a part  of  the  law  of  nations,  direct ; crimes  must  be  dealt 
with  and  punished  as  the  Constitution,  and  laws  made  in  pursuance 
thereof,  may  direct.  (Speed  on  the  Conspirators,  July,  1865.  11 
Op.  312. 


Define  the  116.  “Law  of  Nations.” — A code  of  public  instruction,  which 
law  of  na-  defines  the  rights  and  prescribes  the  duties  of  nations  in  their 

tions.  intercourse  with  each  other.  1 Kent’s  Com.  1,  2 ; Halleck’s  In- 

ternational Law,  § 1,  and  numerous  citations. 

Can  Con-  Mr.  Randolph;  then  Attorney-General,  said : “ The  law  of 

gress  change  nations,  although  not  specifically  adopted  by  the  Constitution,  is 
nations  ? °*  essentially  a part  of  the  law  of  the  land.  Its  obligation  commences 
and  runs  with  the  existence  of  a nation,  subject  to  modification  on 
some  points  of  indifference.”  (See  opinion  Attorney-General,  vol. 
1,  page  27.)  Hence  Congress  may  define  those  laws,  but  cannot 
abrogate  them ; or,  as  Mr.  Randolph  says,  may  “ modify  on  some 
points  of  indifference.’  (Speed  on  the  Conspirators),  July,  1865. 

That  the  laws  of  nations  constitute  a part  of  the  laws  of  fhe 
land  is  established  from  the  face  of  the  Constitution,  upon  principle 
and  by  authority.  Id.  11  Op.  299. 

117, 119.  But  the  laws  of  war  constitute  much  the  greater  part  of  the  law 
of  nations.  Like  the  other  laws  of  nations,  they  exist  and  aro  of 
binding  force  upon  the  departments  and  citizens  of  the  govern- 
ment, though  not  defined  by  any  law  of  Congress.  Id. 


01.  10,  11.] 


WAR,  117,  118. 


127 


Congress  can  declare  war.  When  war  is  declared,  it  must  be,  When  war 
under  the  Constitution,  carried  on  according  to  the  known  laws  [8  declared 
and  usages  oi  war  amongst  civilized  nations.  Id.  ke  waged  ? 

[11.]  To  declare  war,  grant  letters  of  marque  and 
reprisal,  and  make  rules  concerning  captures  on  land  war  Power  ? 
and  water. 

376. 

117,  “ To  Declare  War.” — See  Confederation,  Art.  IX.  p.  14. 

“To  declare,”  may  be  as  well  by  a formal  recognition,  as  by  a How  is  war 
declaration  in  advance.  Thus  in  our  war  with  G-reat  Britain  in  declare^ 
1812  : “ That  war  be,  and  is  hereby  declared  to  exist,  between  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  the  dependencies 
thereof,  and  the  United  States  of  America  and  their  territories.” 

Act  of  1812,  ch.  102;  2 St.  155 ; Story’s  Const.  § 1174;  Talbot  v. 

Seaman,  1 Cranch,  28 ; Bas  v.  Tingey,  4 Dali.  37. 

And  in  the  war  with  Mexico,  in  1846,  after  the  commencement 
of  hostilities : “ Whereas  war  exists,  with  Mexico,  by  the  act  of 
Mexico.”  9 St.  9. 

So  in  the  qualified  war  with  France,  in  1798,  which  was  regulated 
by  sundry  acts  confining  the  war  within  certain  limits.  Rawle’s 
Const,  ch.  9,  p.  109. 

During  the  rebellion,  the  existence  of  the  civil  war  was  recognized 
in  a number  of  acts  of  Congress,  but  there  was  no  formal  recogni- 
tion of  the  war. 

To  declare  war  in  Great  Britain  is  the  exclusive  prerogative  of 
the  Crown;  and  in  other  countries,  it  is  usually,  if  not  universally, 
confided  to  the  executive  department.  (1  Tucker’s  Black.  App. 

271;  4 Black.  Com.  257,  258.)  Story’s  Const.  § 1170.  See  Federal- 
ist, No.  41.  See  Halleck’s  International  Law,  ch.  20-24,  pp.  289- 
992. 

War  is  “ that  state  in  which  a nation  prosebutes  its  right  by  what  is 
force.”  The  Prize  Cases,  2 Black,  666.  (A  state  of  forcible  conten-  war? 
tion;  of  armed  hostility  between  nations.  Grotius  de  jure  bell.  lib.  116. 

1.  c.  1.)  Civil  war  exists  when  the  regular  course  of  justice  is  What  is 
interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  courts  of  civil  war  ? 
justice  cannot  be  kept  open.  The  Prize  Cases,  2 Black,  667.  132. 

Congress  alone  has  the  power  to  declare  a national  or  foreign  war ; 234,  235. 
but  not  against  a State,  or  any  number  of  States,  under  the  Consti- 
tution. But  the  President  may  resist  the  insurrection  without  a 
declaration  of  war.  The  Prize  Cases,  2 Black’s  Rep.  668,  669. 

A civil  war  is  waged  because  the  laws  cannot  be  peaceably  Why  is  civil 
enforced  by  the  ordinary  tribunals  of  the  country  through  civil  pro-  war  waged? 
cess  and  by  civil  officers.  Speed  on  the  power  to  execute  the 
assassins  of  the  President,  p.  5. 

118,  As  a consequence  of  the  power  of  declaring  war,  and  What  can 
making  treaties,  the  government  possesses  the  power  of  acquiring  ^Qn|°^ern* 
territory,  either  by  conquest  or  by  treaty.  American  Ins.  Co.  v.  under 
Canter,  1 Pet.  542  ; Scott  v.  Sandford,  19  How.  393.  In  this  case,  this  power? 
the  power  to  acquire  territory  is  not  rested  upon  any  particular 

power  in  the  Constitution,  but  is  unqualifiedly  asserted  to  exist.  Id.  231,  232. 


128 


WAE,  118. 


[Art.  I.,  Sec:  8 


250,  254. 


376-378. 


What  was 


229-232.  446-7.  It  would  seem  to  be  rested  upon  the  power  to  admit  new 

States.  Id.  All  contracts  made  by  the  citizens  of  one  country  with 
What  is  the  the  citizens  or  subjects  of  another,  which  countries  are  at  war  with 
u^muhe  eit1* eac^  °^er»  are  void.  Griswold  v.  Edrington,  16  Johns.  444.  In 
izens  ? 6 Clt"  this  case,  Chancellor  Kent  exhausts  the  whole  learning  upon  the 
subject  down  to  1819.  He  says:  “The  law  has  put  the  sting  of 
disability  into  every  kind  of  voluntary  communication  and  contract 
with  an  enemy  which  is  made  without  the  special  permission  of  the 
government.”  (T6  Johns.  483);  Jackson  v.  Johnson,  11  Johns.  418  ; 
1 Kent’s  Com.  66 ; The  Ann  Dodson,  2 Wh.  27  ; The  Mary  & 
Susan,  1 Wh.  57  ; 2 Cond.  599;  The  Julia,  8 Cr.  181-203  ; 3 Cond. 
152.  When  one  nation  is  at  war  with  another  nation,  all  the  sub- 
jects or  citizens  of  the  one  are  deemed  in  hostility  to  the  subjects  or 
citizens  of  the  other : they  are  personally  at  war  with  each  other, 
and  have  no  capacity  to  contract.  White  et  al.  v.  Burnley,  20  How. 
249;  Ogden  v.  Lund,  11  Tex.  690.  The  court  is  bound  judicially 
to  know  when  war  existed.  Id. ; The  Prize  Cases,  2 Black,  666. 
The  inhabitants  are  not  permitted  to  pass  from  the  one  country  to 
the  other.  Ogden  v.  Lund,  11  Tex.  690.  The  military  upon  the 
frontier,  from  the  necessity  of  the  case,  must  be  charged  with  the 
duty  of  preventing  such  intercourse.  Id.  To  prevent  the  running 
of  a ferry  between  Texas  and  Mexico,  while  the  United  States  and 
Mexico  were  at  war,  was  lawful,  and  affords  no  ground  of  action 
the  re  a&a*nst  the  °fficer-  Id.  692.  See  Constitution  of  the  Confederate 
hellion?  re~  States,  same  section.  Paschal’s  Annotated  Dig.,  note  217.  These 
general  rules  of  law  are  applicable  alike  to  civil  and  international 
wars:  that  all  people,  of  each  State  or  district,  in  insurrection 
against  the  United  States,  must  be  regarded  as  enemies,  until,  by 
the  action  of  the  legislature  and  the  executive,  or  otherwise,  that 
relation  is  permanently  changed.  (The  Prize  Cases,  2 Black,  687.) 
Mrs.  Alexander’s  Cotton,  2 Wall.  419;  The  Venice,  2 Wall.  274  ; 
The  Prize  Cases,  2 Black,  666. 

This  power  necessarily  extends  to  all  legislation  necessary  to  the 
prosecution  of  war  with  vigor  and  success,  except  such  as  interferes 
with  the  command  of  the  forces  and  the  conduct  of  the  campaign. 
Ex  parte  Milligan,  4 Wallace,  139. 

When  two  governments,  foreign  to  each  other,  are  at  war, 
or  when  a civil  war  becomes  territorial,  all  of  the  people  of  the 
respective  belligerents  become,  by  the  law  of  nations,  the  enemies 
of  each  other.  Speed.  11  Op.  312. 

But  this  only  authorizes  hostility  by  those  who  are  empowered 
by  the  express  or  implied  command  of  the  State,  &c. 

lienee  it  is  that,  in  land  wars , irregular  bands  of  marauders  are 
liable  to  be  treated  as  lawless  banditti,  not  entitled  to  the  protection  of 
the  mitigated  usages  of  war  as  practiced  by  civilized  nations.  (Whea- 
ton’s Elements  of  International  Law,  page  406,  3d  edition ; Speed 
on  the  Assassins,  p.  9.)  Id.  314. 

“ A pirate,  an  outlaw,  or  a common  enemy  to  all  mankind  may  be 
put  to  death  at  any  time.  It  is  justified  by  the  law  of  nature  and 
nations .”  (Patrick  Henry ; 3 Elliott’s  Debates  on  Federal  Constitu- 
t^ri.nstionp.u'b;. Speed.)  . . 

tried  ? The  assassins  were  tried  by  military  commission  and  convicted, 


Does  this 
justify  ma- 
rauders ? 
115, 116. 


112. 


01. 11.] 


129 


$* 

WAR,  118. 

and  a part  of  the  conspirators  executed,  and  a part  of  them  sen- 
tenced to  imprisonment  for  life.  See  the  volumes  containing  the 
trial  of  the  conspirators ; and  see  the  trial  of  Surratt. 

Until  Congress  passes  laws  upon  the  subject  of  war  and  reprisals  Define  the 
no  private  citizen  can  enforce  such  rights;  and  the  judiciary  is  ^rin^he 
incapable  of  giving  them  any  legitimate  operation.  (Brown  v.  i^^rebel- 
United  States,  8 Cr.  1.)  Story’s  Const.  § lift.  And  although  lion. 

Mrs.  Alexander  had  taken  the  oath  of  amnesty,  while  she 
remained  in  rebel  territory  she  had  no  standing  in  court.  Mrs. 

Alexander’s  Cotton,  2 Wall.  421.  The  cotton  captured  on  the 
land  by  the  naval  forces,  in  a rebellious  State,  was  not  the  subject 
of  prize.  See  9 Op.  524,  525  ; (Speed,  4-10).  The  Queen  of  Eng- 
land recognized  the  Confederates  as  neutrals,  on  the  13th  May, 

1861.  Id.  669.  The  President  must  determine  when  insurrection 
exists.  The  Prize  Cases,  670.  His  proclamation  of  blockade,  of 
19th  April,  1861,  is  conclusive  upon  the  courts ; and  neutrals 
were  bound  by  it.  Id.  Under  this  very  peculiar  Constitution, 
although  the  citizens  owe  a supreme  allegiance  to  the  Federal  To  whom  is 
Government,  they  owe  also  a qualified  allegiance  to  the  State  in  ^^iance 
which  they  are  domiciled.  Their  persons  and  property  are  sub- 
ject to  its  laws,  and  they  are  liable  to  be  treated  as  enemies.  Id.  17, 220. 

673.  When  the  legislative  authority  has  declared  war,  the  execu- 
tive authority,  to  whom  its  execution  is  confided,  is  bound  to  carry  What  are  the 
it  into  effect ; he  has  a discretion  vested  in  him,  as  to  the  manner  ^wera 
and  extent;  but  he  cannot  lawfully  transcend  the  rules  of  warfare  Powelfa* 
established  among  civilized  nations.  Brown  v.  United  States,  8 
Cr.  153.  The  Supreme  Court  of  the  State  of  Pennsylvania  has  de- 
cided that  the  United  States  conscription  is  unconstitutional.  Judge  What  as  to 
Woodward  gave  the  decision.  The  following  is  an  abstract: — conscrip- 
He  starts  with  the  idea  that  the  conscription  levies  upon,  takes, tlon 
and  destroys  the  militia  of  the  States,  and  in  spite  of  the  States. 

He  shows  that  in  1706  and  1707  a conscription  was  attempted  in 
the  British  Parliament,  but  laid  aside  as  unconstitutional ; and  he 
reasons  that  our  fathers,  in  making  the  Federal  Constitution,  never 
intended  to  give  a central  government  power  over  life  and  liberty 
not  found  even  in  tjie  British  constitution.  Standing  armies  are 
the  jealousies  of  Britons.  Our  fathers  never  intended  to  raise  them 
by  force,  independent  of  the  States.  General  Washington,  in  sup- 
pressing the  whisky  rebellion  of  Pennsylvania,  paid  the  most 
scrupulous  attention  to  the  rights,  and  interests,  and  laws  of  Penn- 
sylvania. Citizens  cannot  be  made  deserters  of  before  they  have 
been  soldiers,  as  the  conscription  act  declares. 

“ There  are  other  features  of  the  conscript  law  that  deserve 
criticism;  but  not  to  extend  my  opinion  further,  I rest  my  objection 
to  its  constitutionality  upon  these  grounds : — 

“ 1st.  That  the  power  of  Congress  to  raise  and  support  armies  does  124. 

not  include  the  power  to  draft  the  militia  of  the  States.  2d.  That 
the  power  of  Congress  to  call  forth  the  militia  cannot  be  exercised  130. 
in  the  forms  of  this  enactment.  3d.  That  a citizen  of  Pennsylvania 
cannot  be  subjected  to  the  rules  and  articles  of  war  until  he  is  in 
actual  military  service.  4th.  That  he  is  not  placed  in  such  actual 
service  when  his  name  has  been  drawn  from  a wheel,  and  ten  days’ 


130 


WAR — REPRISAL,  118-123. 


[Art.  1,  Sec.  8. 


130-133. 


What  of 
marque  and 
reprisal  ? 


Define 

marque. 


What  is  the 
meaning  of 
reprisal  ? 


383,  384. 


What  is  the 
power  as  to 
armies  ? 

380. 


f)eline  to 
raise  and 
support. 


notice  thereof  has  been  served  upon  him.”  Kneedler  v.  Lane, 

9 Wright,  331;  48  Penn.  331. 

The  conscript  laws  of  the  Confederacy,  which  declared  every 
man  from  seventeen  to  fifty  years  of  age  a soldier,  were  held,  by  a 
majority  of  the  Supreme  Court  of  Texas  (under  this  same  power) 
to  be  constitutional,  Mr.  Justice  Bell  dissenting.  Paschal’s  Anno- 
tated Digest,  notes  217-219;  Ex  parte  Coupland;  26  Tex.  394. 

119.  “Grant  Letters  of  Marque  and  Reprisal.”  This 
power  would  be  incident  to  the  power  to  declare  war.  (See  Mr. 
Madison’s  Letter  to  Mr.  Cabell,  18th  Sept.,  1828.)  Story’s  Const. 
§1175. 

120.  Marque  is,  in  public  law,  the  frontier  boundary  of  a 
country.  And  “to  grant”  is  permission  to  pass  the  frontier 
of  a country  in  order  to  make  reprisals.  (See  March’s  Letters  of 
Marque ; 1 Bl.  Com.  258.)  Burrill’s  Law  Die.,  Marque.  Generally 
used  as  synonymous  with  “ reprisal”  1 Black,  Com.  258.  See 
Halleck’s  International  Law,  391-398;  Wheaton’s  International 
Law,  part  4,  chap.  2,  sec.  10. 

121.  “Reprisal.”  [. Reprisalia. ] A retaking;  taking  back; 
recaption.  The  repossessing  one’s  self  of  a thing  unjustly  taken 
by  another.  3 Bl.  Com.  4.  A taking  of  one  thing  in  satisfaction 
for  another  (captio  rei  unius  in  alter ius  salisf actionem) — frequently 
used  in  the  plural  reprisalia.  Spelman ; Loccende  Jur.  Mar.  lib.  3, 
C.  5 ; 1 Kent’s  Corn’s  61. 

A taking  in  return ; a taking  by  way  of  retaliation.  Burrill’s 
Law  Die.  reprisal.  In  this  case,  letters  of  “ marque  and  reprisal  ” 
(words  used  as  synonymous,  the  latter  [reprisal]  signifying  a 
taking  in  return,  the  former  [“ letters  of  marque”],  the  passing  the 
frontiers  in  order  to  such  taking)  contain  an  authority  (grant)  to 
seize  the  bodies  or  goods  of  the  subjects  of  the  offending  State 
wherever  they  may  be  found,  until  satisfaction  is  made  for  the 
injury.  (1  Black.  Com.  258,  259 ; Bynkershock  on  War,  ch.  24,  p 
182,  by  Duponceau  ; Valin.  Traite  des  Prises,  pp.  223,  321 ; 1 Tuck 
Black.  Com.,  App.  271;  4 Elliot’s  Debates,  251.)  Story’s  Const.  § 
1176.  Halleck,  391,  393. 

[12.]  To  raise  and  support  armies;  but  no  appro- 
priation of  money  to  that  use  shall  be  for  a longer 
term  than  two  years. 

122.  This  power  did  not  exist  under  the  Articles  of  Confede- 
ration. For  discussions  of  the  limitation  and  necessities  of  this 
power,  see  4 Elliot’s  Debates,  220,  221 ; 1 American  Museum,  270, 
273,  283;  5 Marshall’s  Life  of  Washington,  App.,  note  1;  Id.  ch.  3, 
p.  125,  126;  ch.  5,  p.  212-220;  ch.  6,  p.  238-248;  2 Elliot’s 
Debates,  93,  285,  286,  307,  308,  309.  319,  320,  430.  438;  Federal- 
ist, Nos.  23,  24-29,  41;  Story's  Const.  § 1168-1198,  3d  ed.  and 
notes. 

1211.  “To  raise  and  support,”  in  practice,  means  to  edu- 
cate, commission,  enlist,  draft,  conscript,  feed,  clothe,  transport  and 


Cl.  12.] 


armies,  123,  124,  125. 


131 


pay  officers  and  men.  See  Brightly’s  Digest,  55-90  and  notes;  379. 

2 Id.  9-50.  During  peace  as  well  as  war.  Story’s  Const.  § 1186- 
1198. 

124.  “Armies.” — Collections  or  bodies  of  men,  armed  for  war,  Define 
and  organized  in  companies,  battalions,  regiments,  brigades  and  armies, 
divisions,  under  their  proper  officers.  Webster’s  Die.  Army.  All 

the  military  in  the  service  of  the  United  States  are  called  the  army 
of  the  United  States.  The  power  to  raise  large  bodies  of  men  and 
divide  them  into  11  armies  ” has  only  been  exercised  three  times  since 
the  formation  of  the  government,  viz. : In  the  war  with  G-reat  117,  ns. 

Britain,  1812,  with  Mexico,  1846,  and  during  the  late  rebellion. 

The  Army  of  the  United  States  consists  of  five  regiments  of  What  is  the 
artillery,  ten  regiments  of  cavalry,  forty-five  regiments  infantry,  present 
the  Professors  and  Corps  of  Cadets  of  the  United  States  Military  army  ? 
Academy,  and  the  officers  and  men  of  the  different  departments 
and  corps,  under  the  control  of  the  War  Department.  The  ranks 
of  the  commissioned  officers  of  this  army  are : General  (Ulysses  S. 

Grant) ; Lieutenant-General  (William  T.  Sherman) ; Major-General 
(five) ; Brigadier- General  (ten) ; Colonel ; Lieutenant-Colonel ; 

Major;  Captain;  Lieutenant,  first  and  second.  14  Stat.  332  ; and 
see  the  Reports  of  Sec.  of  War,  1866  and  1867;  and  the  Army 
Register.  At  the  close  of  the  rebellion,  the  army  consisted  of  over 
a million  of  men,  rank  and  file,  which  had  been  raised  by  enlist- 
ment, drafts,  and  bounties.  The  power  is  unlimited,  being  an  indis- 
pensable incident  to  the  power  to  declare  war.  See  Story’s  Const.  123. 

§ 1178-1192,  and  the  references;  2 Elliot’s  Debates,  285,  286,  307, 

308,  430 ; Federalist,  Nos.  23,  24,  25,  28.  See  1 Brightly’s  Dig. 

55-90;  2 Id.  9-50. 

125.  Congress  has  a constitutional  power  to  enlist  minors,  in  what  is  the 
the  navy  or  army,  without  the  consent  of  their  parents.  United  power  of 
States  v.  Bainbridge,  1 Mass.  71;  Case  of  Emanuel  Roberts,  2enllstment? 
Hall’s  L.  J.  192  ; United  States  v.  Stewart,  Crabbe,  205  ; Common- 
wealth v.  Murray,  4 Binn.  487 ; Commonwealth  v.  Barker,  5 Id., 

423;  Commonwealth  v.  Morris,  Phil.  R 381;  Ex  parte  Brown,  5 118. 

Cr.  C.  C.  554.  Public  policy  requires  that  a minor  shall  be  at  lib- 
erty to  enter  into  a contract  to  serve  the  State,  whenever  such 
contract  is  not  positively  forbidden  by  the  State  itself.  Common- 
wealth v.  Gamble,  1 1 S.  & R.  94 ; The  King  v.  Rutherford  Grays, 

1 Barn  and  Cress,  345.  The  act  of  21st  June,  1862,  § 2,  12  Stat.  140, 141. 
620,  repealed  the  act  of  28th  September,  1850,  which  required  the 
consent  of  parents  or  guardians  for  the  enlistment  of  minors,  since 
which  repeal  minors,  between  the  ages  of  eighteen  and  twenty-one, 
may  be  enlisted  without  the  consent  of  the  parent  or  guardian. 

Follis’s  Case,  10  Leg.  276.  But  see  United  States  v.  Wright,  2 
Leg.  Int.  21,  and  Commonwealth  v.  Carter,  Id.;  Henderson’s  Case, 

Id.  187,  where  it  is  held  that  the  act  of  1802  is  still  in  force,  and 
that  such  enlistment  is  void.  In  Shirk’s  Case,  however,  a discharge 
under  similar  circumstances  was  refused  20  Leg.  Int.  260.  The 
oath  of  enlistment,  though  conclusive  upon  the  recruiting  officer,  is 
not  so  upon  the  courts.  Webb’s  Case,  10  Pittsburg,  L.  J.  106. 

Contra , United  States  v.  Taylor,  29  Leg.  Int.  284;  Jordan’s  case, 


132 


AEMIES — NAVY,  125,  126,  127.  [Art.  I.,  Sec.  8, 


What  right 
does  war 
give  over 
the  citizen  ? 

130. 


Define  the 
war  depart- 
ment. 


379.  11  Am.  L.  R.  749.  A prisoner  of  war,  paroled  by  the  enemy,  is 

not  entitled  to  his  discharge,  although  a minor,  until  exchanged. 
Henderson’s  Case,  20  Leg.  Int.  181 ; 2 Brightly ’s  Dig.  p.  24,  note. 

Each  individual  in  a republic,  as  in  a monarchy,  can  be  required 
to  perform  military  duty  without  his  consent,  if  the  demand  is 
made  by  a proper  exercise  of  the  national  will.  Ex  parte  Coupland, 
26  Tex.,  394.  This  follows  from  the  unrestricted  power  to  declare 
war.  Id.  (Cites  Hurd,  on  Habeas  Corpus , 8;  United  States  v.  Bain- 
bridge  ; Mass.  71;  Federalist,  187.)  “ Militia  ” is  not  synonymous 

with  “ arms-bearing  men;”  and  it  was  held  that  when  the  citizens 
were  conscripted  into  the  “Confederate  States”  service  (under 
the  same  clauses),  they  had  no  right  to  choose  their  officers.  Id.  396, 
397.  When  a citizen  goes  into  the  army  raised  by  Congress,  either 
voluntarily,  or  in  obedience  to  the  law  requiring  him  to  do  so,  he 
does  this  as  a citizen,  and  not  a militia-man.  Id.  397.  Paschal’s 
Annotated  Digest,  217-220,  p.  88-91. 

For  the  time  being,  the  right  of  the  State  government  over  him 
ceases.  The  opinion  endeavors  to  reconcile  this  view  with  the  doc- 
trines of  States  Rights,  and  held  the  Confederate  conscript  law  to 
be  constitutional  during  the  necessity.  Id.  397-405.  Mr.  Justice 
Bell  reviewed  the  41st,  29th,  45th  and  4th  numbers  of  the  Feder- 
alist, and  denied  the  constitutionality  of  the  law.  Id.  405-430. 

This  power  has  led  to  the  establishment  of  the  War  Depart- 
ment, presided  over  by  a Secretary  and  Assistant  Secretary  of  War, 
to  which  are  attached  the  following  departments,  the  heads  of 
which  have  the  rank  of  Brigadier-General,  viz. : Adjutant-General, 
Quartermaster,  Subsistence,  Pay,  Medical,  Ordnance,  and  Bureau 
of  Military  Justice ; there  are  four  Inspectors-General,  with  the 
rank  of  Colonel,  and  also  an  Engineer  and  Signal  Corps.  The  Chief 
of  Engineers  has  the  rank  of  Brigadier-General,  and  the  chief  signal 
officer  ranks  as  Colonel  of  cavalry. 

For  how  126.  But  no  appropriation  to  that  use  shall  be  for  a 

theV^ro  L0XGER  term  than  two  years.  Congress  may  vote  the  supplies 

priat?oPnbe  ? f°r  hut  one  Jear  or  a shorter  period,  but,  imperative^,  no  appro- 
priation shall  be  for  a longer  period  than  two  years.  (Federalist, 
Nos.  26,  41  ; 2 Elliot’s  Debates,  93,  308,  309.)  Story’s  Const.  § 
1188,  1189,  1190. 

The  English  Parliament  is  not  thus  restricted.  1 Black.  Com. 
414,41.5;  Tucker’s  Appendix,  271,  272,  379;  Federalist,  No.  41; 
Story’s  Const.  § 1190. 

Navy?  [13*]  To  provide  and  maintain  a navy. 

Define  to  127.  “To  Provide  and  Maintain,”  in  this  clause,  is  about 

provide  and  equivalent  “ to  raise  and  support ,”  in  the  preceding  clause.  The  pres- 
maintam  . ent  splendid  navy  of  the  United  States,  with  its  immortal  history,  is 
122,  123.  the  best  refutation  of  the  arguments  which  were  urged  against  this 
necessary  branch  of  the  service.  See  Articles  of  Confederation, 
Art.  IX.  ante  p.  14.  See  Federalist,  Nos.  11,  24,  29,  41;  2 Elliot’s 
Debates,  319-324;  Virginia  Resolutions  and  Report,  7th  and  11th 
128.  Jan.,  1800,  pp.  57-59;  5 Marshall’s  Life  of  Washington,  523-531  1 
.Story's  Const.  § 1193-1198. 


01.  14,  15.]  NAVY — MILITIA,  128,  129,  130, 


133 


12§.  “Navy;”  [Navigation — from  Navis , a ship.] — “ To  build  Define  navy, 
and  equip  a navy.”  Articles  of  Confederation,  ante  Art.  IX.  p. 

14.  The  present  words  are  more  broad  and  appropriate.  Story’s 
Const.  § 1194.  It  practically  means  not  only  to  build  and 
equip,  but  to  organize,  provide,  and  maintain  a naval  department,  12T. 
naval  school,  coast  survey,  naval  armament,  merchant  marine ; and 
it  is  the  strongest  arm  of  our  harbor  defenses,  as  well  as  a pow- 
erful engine  of  attack  and  offensive  warfare.  1 Brightly’s  Digest, 

657-680;  2 Id.,  315-387. 

It  is  the  natural  result  of  the  sovereignty  over  the  navy  of  the 
United  States,  that  it  should  be  exclusive.  Whatever  crimes, 
therefore,  are  committed  on  board  of  public  ships  of  war  of  the  110, 116. 
United  States,  whether  they  are  in  port  or  at  sea,  are 
exclusively  cognizable  and  punishable  by  the  government  of  the 
United  States.  The  public  ships  of  sovereigns,  wherever  they  may 
be,  are  deemed  to  be  extra-territorial,  and  enjoy  the  immunities 
from  the  local  jurisdictions  belonging  to  their  sovereign.  (See 
United  States  v.  Be  vans,  3 Wheat.  336,  390.  The  Schooner 
Exchange,  7 Cr.  116.)  Story’s  Const.  § 1168. 

This  grant  of  power  has  been  developed  in  the  organization  of  a 
Navy  Department,  over  which  presides  a Secretary  of  the  Navy 
(at  present  Gideon  J.  Welles),  an  Assistant  Secretary  of  the  Navy, 
and  other  appropriate  officers  of  the  bureau. 

The  ranks  of  the  Naval  officers  are:  Admiral,  Yice- Admiral, 
Commodore,  Captain,  Commander,  Lieut.-Commander,  Lieutenant, 

Master,  Ensign,  Midshipman.  2 Brightly’s  Digest,  315,  316,  318; 

14  Stat.,  515,  516. 


[14.]  To  make  rules  for  the  government  and  regula-  How  to 
tion  of  the  land  and  naval  forces.  forces1?  6 


129.  “ To  Make  Rules,”  in  this  connection,  means  to  pre-  Define  to 
scribe  the  rules  of  conduct;  that  is,  to  enact  the  necessary  laws  make  rules? 
“ for  the  government  and  regulation  of  the  land  and  naval  forces.”  138,  238,  240. 
This  Congress  has  done,  by  the  enactment  of  the  rules  and  articles 

of  war,  which  are  always  in  the  hands  of  military  and  naval  offi-  120-127. 
cers,  and  have  become  exceedingly  familiar  to  our  volunteer 
civilians  during  the  late  war. 

For  these  “Rules”  see  1 Brightly’s  Dig.  pp.  73-83,  ch.  XVI. 

Arts.  I-CL;  2 Brightly,  24-27  ; 2 St.  359;  12  St.  316,  330,  339,  354, 

589,  595,  598,  735,  754;  13  St.  145,  356,  489. 

[15.]  To  provide  for  calling  forth  the  militia  to  exe-  what  power 
cute  the  laws  of  the  Union,  suppress  insurrections,  militia .» 
and  repel  invasions. 

130.  Militia. — The  national  soldiery  of  a country,  as  distin-  Define  mili- 
guished  from  a standing  military  force,  consisting  of  the  able-bodied  tia  * 

male  inhabitants  of  a prescribed  age,  who  are  enrolled,  officered,  mus- 
tered, and  trained  according  to  law,  but  are  called  into  active  service  234,  235. 
only  on  emergent  occasions,  such  as  to  suppress  insurrections  and 
repel  invasions,  for  the  public  defense.  (Act  of  Congress,  8 May, 


134  NAVY — MILITIA,  130,  131,  132.  [Art.  L,  Sec.  8, 


1792;  1 Kent’s  Com.  262,  266.)  Burrill’s  Law  Die.,  Militia;  1 
Brightly’s  Dig.,  619,  624,  and  notes;  2 Id.,  299  ; 525-597. 

189.  The  act  of  1795,  which  confers  power  on  the  President  to  call 
forth  the  militia  in  certain  exigencies,  is  constitutional ; and  the 
President  is  the  exclusive  and  final  judge  whether  the  exigency  has 
arisen.  Martin  v.  Mott,  12  Wh.  19 ; Yanderheyden  v.  Young,  11 
Johns.  150.  The  power  to  repel  invasion  includes  the  power  to 
provide  against  the  attempt  or  danger  of  invasion.  Martin  v.  Mott, 
234,  235.  12  Wh.  19;  6 Cond.  417.  Those  called  out  according  to  law  are 

subject  to  court-martial.  (Houston  v.  Moore,  3 Wh.  433.)  Martin 
v.  Mott,  6 Cond.  421 ; Moore  v.  Houston,  3 Serg.  and  It.  167 ; 1 
Kent’s  Com.  267  ; Bates  on  Habeas  Corpus , 5th  July,  1861.  The  Presi- 
dent cannot  exercise  this  power.  Bates,  18th  April,  1861. 

What  are  the  It  belongs  exclusively  to  the  President  to  judge  when  he  has  the 
president’s  authority  to  call  forth  the  militia,  and  his  decision  is  conclusive 
powers.  Up0n  an  others.  Martin  v.  Mott,  12  Wheat.  19;  1 Kent’s  Com. 

279  ; and  see  the  same,  244-250 ; Story’s  Const.  § 1210-1215 ; Bates 
on  Habeas  Corpus , 5th  July,  1861. 

235.  And  also  upon  the  Courts  of  the  United  States.  Luther  v. 
Borden,  7 How.  1. 

The  power  is  to  be  exercised  upon  sudden  emergencies,  upon 
great  occasions  of  State,  and  under  circumstances  which  may  be 
vital  to  the  existence  of  the  Union.  Luther  v.  Borden,  How.  18, 
19,  31,  32;  Story’s  Const.  § 1211. 

The  President  may  make  his  requisitions  directly  upon  the  ex- 
ecutives of  the  States,  or  by  orders  directed  to  any  subordinate 
officers  of  the  militia.  Houston  v.  Moore,  5 Wheat.  15-16;  see  1 
Kent’s  Com.  277-279. 

When  do  The  militia  is  the  militia  of  the  States,  respectively,  and  not  of  the 
the  militia  United  States.  When  called  into  the  service  of  the  General  Gov- 
national  ? ernment,  they  become  national  militia  after  they  are  mustered  at 
the  place  of  rendezvous  designated  by  national  authority,  and  not 
until  then.  (Houston  v.  Moore,  5 Wheat;  Martin  v.  Mott,  12 
Wheat.  19.) 

Define  laws  131.  Laws  of  the  Union. — This  Constitution,  and  the  laws 
of  the  Union.  0f  the  United  States  which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
23S-240.  the  United  States,  shall  be  the  supreme  law  of  the  land.  Art.  6, 
cl.  2.  The  laws  of  the  Union  are  of  course  this  supreme  law ; and 
the  execution  of  this  power  is  coextensive  with  the  whole  subject 
of  constitutional  legislation.  But  the  exigency  can  only  arise  when 
there  is  an  actual  or  threatened  resistance  to  the  laws  of  the 
United  States.  See  Bates  on  Habeas  Corpus , 5th  July,  1861. 


Define  in-  132.  Insurrections. — It  has  often  been  contended  that  insur- 
eurrection.  rection  here  only  means  that  “ domestic  violence  ” mentioned  in 
234,  235.  the  fourth  section  of  the  fourth  article,  and  hence  that  the  power 
can  only  be  exercised  when  the  legislature  or  executive  of  a State 
demands  it. 

But  insurrection  seems  to  have  been  treated  as  resistance  to 
law  by  a force  too  strong  for  the  ordinary  posse  comitatus.  (2 
Elliot’s  Debates,  292-309;  Federalist,  No.  29.)  Story’s  Const 


Cl.  15,  16.] 


MILITIA,  133,  134. 


135 


§ 1201.  It  doubtless  has  reference  to  the  violences  of  a domestic 
faction,  or  sedition,  as  contradistinguished  from  invasion  by  a 235. 
foreign  enemy.  Id.  And  the  insurrection  may  as  well  be  against 
United  States  as  State  authority. 

In  the  Southern  States,  the  word  “insurrection”  was  almost 
exclusively  confined  to  “ risings  ” by  the  slave  population. 

Insurrection  is  synonymous  with  sedition,  rebellion,  revolt. 

Webster’s  Die.,  Rebellion. 

133.  “Invasions  ” is  here  doubtless  coupled  with  the  guaranty  Define  inva- 
of  the  United  States  “ to  protect  every  State  against  invasion.”  sion  ? 

(Art.  IY.  sec  4.)  But  the  “ invasion  ” would  be  none  the  less  so  234>  235* 

if  invited  by  State  authorities,  or  if  no  call  should  be  made  by  the 
legislature  or  governor  of  an  invaded  State.  The  act  of  1795 
seemed  to  restrict  the  idea  to  invasions  by  a foreign  enemy,  as  in 
the  wars  of  1812  and  1846.  1 St.  424;  1 Brightly’s  Dig.  440  and 

notes. 

[16.]  To  provide  for  organizing,  arming,  and  disci- What  is  the 
plining  the  militia,  and  for  governing  such  part  of  them  organizing0 
as  may  be  employed  in  the  service  of  the  United 
States ; reserving  to  the  States,  respectively,  the  ap- 
pointment of  the  officers  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by 
Congress. 

134.  This  “ ORGANIZING-,  ARMING,  AND  DISCIPLINING  TOE  MILITIA,”  What  does 
would  include  the  whole  legislation  upon  the  subject.  But  prac-  organizing 
tically  the  power  has  not  been  fully  exercised  in  time  of  peace.  It  include? 
has  indeed  generally  been  left  to  the  States,  except  as  to  the  tactics 

and  the  distribution  of  arms,  by  quotas  among  the  States.  See  Act 
of  8th  May,  1792,  ch.  33,  1 St.  271 ; Act  of  12th  May,  1820,  ch.  97  ; 

Act  of  1821,  ch.  68,  3 St.  577;  Story’s  Const.  § 1208;  1 Brightly’s 
Dig.  61 9-624.  2 Id.  299  and  notes.  Militia  here  means  the  body  Define  mili- 

of  arms-bearing  citizens,  as  contradistinguished  from  the  regular  tia  ? 
army.  Webster’s  Die.  Militia.  See  Coupland,  ex  parte , 26  Tex. 

411,  412.  For  the  discussions  upon  this  subject,  see  2 Elliot’s 
Debates,  301-318 ; Luther  Martin,  4 Elliot’s  Debates,  34,  35.  If 
Congress  neglect  to  exeweise  this  power,  the  States  have  a con- 
current right  to  do  so.  Houston  v.  Moore,  3 Sergt.  and  Rawle,  369. 

See  Houston  v.  Moore,  5 Wheat.  1—56.  And  see  Luther  v.  Borden, 

7 How.  1 ; Story’s  Const.  § 1207. 

The  militia  of  the  several  States  are  not  subject  to  martial  law  is  conscrip- 
unless  they  are  in  the  actual  service  of  the  United  States.  Mills  tion  consti- 
v.  Martin,  19  Johns.  7.  And  this  does  not  commence  until  their  ? 

arrival  at  the  place  of  rendezvous.  Houston  v.  Moore,  5 Wh.  20.  ns,  124. 

So  far  as  Congress  has  provided  for  organizing  the  militia,  the 
legislative  powers  of  the  States  are  excluded.  Id.  51 ; Houston  v. 

Moore,  3 S.  & R.  169.  But  a State  legislature  may  lawfully  pro- 
vide for  the  trial,  by  courts-martial,  of  drafted  militia  who  shall  re- 


136 


MILITIA — DISTRICT,  134,  135.  [Art.  I.,  Sec.  8, 


What  is  the 
power  over 
the  militia  ? 


Where  has 

congress 

exclusive 

f>ower  of 
egi  station  ? 

386,  386. 


fuse  or  neglect  to  march  to  the  place  of  rendezvous,  agreeably  to  the 
orders  of  the  G-overnor,  founded  on  the  requisition  of  the  President 
of  the  United  States.  Id.  The  act  of  the  Congress  of  the  United 
States,  of  the  3d  March,  1863,  12  Stat.  at  Large,  § 172,  declared, 
that  all  citizens  of  the  United  States,  &c.,  “are  hereby  declared 
to  constitute  the  national  forces,  and  shall  be  liable  to  perform  mili- 
tary duty  in  the  service  of  the  United  States,  when  called  out  by 
the  President  for  that  purpose.”  In  Hew  York,  it  has  been  de- 
termined, that  this  act  is  unconstitutional,  on  the  ground  that  it 
attempted  to  create  a national  militia , a power  not  granted  to  the 
Federal  Government,  which  is  only  empowered  to  raise  an  army  and 
navy;  whilst  the  militia  is  but  a State  force,  though  liable  to  be 
called  into  the  service  of  the  United  States,  by  the  President,  in 
case  of  emergency.  The  People  v.  Stephens,  before  McCunn,  J., 
at  Chambers,  14th  July,  1863.  In  Pennsylvania,  however,  Cad- 
wallader,  J.,  decided  that  the  act  was  constitutional.  Antrim’s 
Case,  20  Leg.  Int.  200 ; 2 Brightly’s  Dig.  40,  note  a:  Kneedler  v. 
Lane,  9 Wright,  23S.  See  ex  parte  Coupland,  26  Tex.  394,  where 
it  was  held  that  a conscript  law,  which  declared  all  men  between 
the  ages  of  17  and  50  years,  was  constitutional. 

When  called  out,  they  are  subject  to  the  rules  and  articles 
of  war,  save  only  that,  when  tried  by  court-martial,  the  court 
shall  be  composed  of  militia  officers.  (1  Brightly’s  Dig.  p.  622,  sec. 
4;  p.  82,  sec.  270.)  Atty.  General  Bates,  18th  April,  1861. 

The  obvious  theory  of  the  Constitution  and  law  is,  that  whilst 
Congress  shall  prescribe,  by  general  rules,  an  uniform  militia  sys- 
tem for  the  States,  securing  the  enrollment  of  all  the  able-bodied 
white  male  citizens,  and  maintaining  the  system  of  discipline  and 
field  exercise  observed  in  the  regular  army  (1  Brightly,  621),  yet 
that  the  details,  militia  organization,  and  management  shall  be  left 
to  the  State  governments,  requiring  that  only  an  annual  report  of 
the  condition  of  the  service  shall  be  left  to  the  President.  Idem. 

This  power  was  first  exercised  to  suppress  the  insurrection  in 
Pennsylvania,  in  1794.  (5  Marshall’s  Life  of  Washington,  ch.  8, 

pp.  576-592;  2 Pitk.  His.  ch.  23,  pp.  421-592;  the  next,  during 
the  war  of  1812,  with  Great  Britain ; and  the  last  was  the  memorable 
occasion,  to  suppress  the  rebellion,  on  the  13th  of  April,  1861,  and 
during  its  continuance.  See  the  Act  of  1795,  1 St.  424; 
Houston  v.  Moore,  3 Sergt.  & R.  169;  and  S.  C.  5 Wheat.  60; 
Martin  v.  Mott,  12  Wheat.  19 ; Duffield  v.  Smith,  3 Sergt.  & R.  590  ; 
Vanderheyden  v.  Young,  11  Johns.  15u. 

[17.]  To  exercise  exclusive  legislation  in  all  cases 
whatsoever  over  such  district  (not  exceeding  ten  miles 
square),  as  may,  by  cession  of  particular  States  and  the 
acceptance  of  Congress,  become  the  seat  of  the  Gov- 
ernment of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  same  shall  be, 


01.  16,  17.] 


DISTRICT,  FORTS,  136,  137. 


137 


for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings.  And, 


136.  “ Exclusive  Legislation  over  the  District.” — This  By  what 
provision  was  executed  by  the  cession  of  the  District  of  Columbia  states  w^s 
by  Maryland  and  Yirginia ; and  the  legislation  by  Congress  over  ceded  ?1Ct 
the  inhabitants  and  public  property  there  ever  since.  % See  1 Bright- 
ly’s  Dig.  p.  233-252.  Congress  retroceded  to  Yirginia,  Alexandria 
and  the  surroundings,  so  that  the  District  is,  in  fact,  only  about 
seven  miles  square.  For  the  reasons  for  this  exclusive  government, 
see  the  Federalist,  No.  43;  2 Elliot’s  Debates,  92,  321,  322,  326; 

Rawle’s  Const,  ch.  9,  p.  112,  113.  See?2)Brightly’s  Dig.  233-252. 

The  site  was  selected  by  President  Washington,  after  whom 
the  capital  was  named.  The  inhabitants  are  citizens  of  the  United 
States ; and  might  constitutionally  have  a local  legislature.  See 
the  Federalist,  No.  43  ; United  States  v.  Bevans,  3 Wheat.  336,  388. 

In  its  exercise,  Congress  acts  as  the  legislature  of  the  Union. 

Cohens  v.  Yirginia,  6 Wheat.  424.  The  elective  franchise  allows 
no  distinction  on  account  of  race  or  color.  14  Stat.  375. 


VI 


137.  This  includes  the  power  of  taxation.  Loughborough  v.  Define  the 
Blake,  5 Wh.  317.  The  charter  of  the  City  of  Washington  did  not  powers? 
authorize  the  corporation  to  force  the  sale  of  lottery  tickets  in 
States  whose  laws  prohibited  such  sales.  Cohens  v.  Yirginia,  6 1 

Wh.  264. 

The  right  of  exclusive  legislation  carries  with  it  the  right  of 
exclusive  jurisdiction.  United  States  v.  Coryell,  2 Mas.  60  91 ; 

6 Opin.  577.  Even  to  recapture  by  military  force.  9 Op.  521.  This 
second  clause  binds  all  the  United  States.  (Cohens  v.  Yirginia, 

6 Wheat.  224.)  Story’s  Const.  § 1229. 

Congress  has  the  right  to  punish  murder  in  a fort,  or  other  Define  the 
place  within  its  exclusive  jurisdiction;  but  no  general  right  to  pun-  jurisdiction 
ish  murder  committed  within  any  of  the  States.  Idem.  The  power  over  or  8 ' 
to  legislate  in  these  places,  ceded  by  a.  State,  carries  with  it,  as  an 
incident,  the  right  to  make  that  power  effectual.  Cohens  v.  Yir- 
ginia, 6 Wheat.  428.  Congress  does  not  act  as  a local  legislature, 
but  exercises  this  particular  power,  like  all  other  powers,  in  its 
hkh  character  as  the  legislature  of  the  Union.  Id. ; Story’s 
Const.  § 1234.  But  the  purchase  of  lands  by  the  United  States  for 
public  purposes,  within  the  territorial  limits  of  a State,  does  not  of 
itself  oust  the  jurisdiction  or  sovereignty  of  such  State,  over  the 
lands  so  purchased.  United  States  v.  Coryell,  2 Mas.  60.  The 
Constitution  prescribes  the  only  mode  by  which  they  can  acquire 
land  as  a sovereign  power ; and,  therefore,  they  hold  only  as  an 
individual  when  they  obtain  it  in  any  other  manner.  Common- 
wealth v.  Young,  Brightly,  302 ; People  v.  Godfrey,  17  Johns.  225  ; 

United  States  v.  Traver,  2 Wh.  Cr.  Cas.  490  ; People  v.  Lent,  Id. 

548.  It  seems,  however,  that  the  States  have  not  the  right  to 
tax  lands  purchased  by  the  United  States  for  public  purposes, 
although  the  consent  of  the  legislature  may  not  have  been  given 
to  the  purchase.  United  States  v.  Weise,  2 Wall.  Jr.  72.  And  see 

7 Opin.  628.  And  see  Commonwealth  v.  Cleay,  8 Mass.  72; 

14 


138 


GENERAL  POWERS,  138-  [Art.  L,  Sec.  2. 


Rawle’s  Const,  ch.  27,  p.  238 ; Sergeant’s  Const,  ch.  28  [ch.  30] ; 
1 Kent’s  Com.  Lect.  19,  pp.  402-404;  Story’s  Const.  § 1222-1224. 

After  a cession  by  a State,  it  cannot  take  cognizance  of  any  acts 
done  in  the  ceded  places  after  the  cession.  And  the  inhabitants 
of  those  places  cease  to  be  inhabitants  of  the  State,  and  can  no 
longer  exercise  any  civil  or  political  rights  under  the  laws  of  the 
State.  But  if  there  has  been  no  cession,  the  State  jurisdiction  still 
remains.  (The  People  v.  Godfrey,  17  Johns.  225;  Commonwealth 
v.  Young,  1 Hall’s  Journal  of  Jurisprudence,  p.  47 ; 1 Kent’s  Com. 
Lect.  19,  p.  403,  404 ; ch.  28  [ch.  30]  ; Rawle’s  (Const,  ch.  27,  p.  238- 
240;)  Story’s  Const.  § 1127. 

What  are  the  [l  8.]  To  make  all  laws  which  shall  be  necessary  and 
ers^of1  Con-  proper  for  carrying  into  execution  the  foregoing 
greSSji  powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any 
department  or  office  thereof. 

Define  nec-  138.  This  does  not  mean  absolutely  necessary,  nor  does  it 
essary  ? imply  the  use  of  only  the  most  direct  and  simple  means  calculated 
269,253,259.^0  produce  the  end.  Commonwealth  v.  Lewis,  6 Binn.  270-1; 

McCulloch  v.  Maryland,  4 Wh.  413;  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  Rep.  438-9.  And,  therefore,  Congress  had  power 
to  charter  the  Bank  of  the  United  States,  as  a necessary  and  useful 
instrument  of  the  fiscal  operations  of  the  government.  Id.  316, 
422.  So,  also,  Congress  has  power,  under  this  general  authority,  to 
provide  for  the  punishment  of  any  offenses  which  interfere  with, 
obstruct,  or  prevent  commerce  and  navigation  with  foreign  States 
and  among  the  several  States,  although  such  offenses  may  be  done 
on  land.  United  States  v.  Coombs,  12  Pet.  78.  Necessary  and 
proper  are  to  be  considered  synonymous  terms.  Metropolitan  Bank 
v.  Van  Dyck,  27  N.  Y.  Rep.  439.  There  is  no  warrant  for  saying 
that  the  powers  shall  be  cgnstrued  strictly.  A reasonable  import 
of  terms  should  be  given.  (Martin  v.  Hunter,  1 Wh.  304,  326-7.) 
Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y.  Rep.  413,  415.  See 
Pederalist,  33,  44. 

This  section  is  among  the  powers  of  Congress,  not  the  limita- 
tions ; it  enlarges  and  adds  to,  but  does  not  diminish  or  lessen  the 
powers.  (McCulloch  v.  Maryland,  4 Wh.  413.)  Metropolitan  Bank 
v.  Yan  Dyck,  27  N.  Y.  Rep.  443.  Under  this  power,  Congress 
may  exempt  the  national  securities  from  taxation.  (The  People  v. 
The  Tax  Commissioners,  2 Black,  620.)  Metropolitan  Bank  v.  Yan 
Dyck,  27  N.  Y.  Rep.  444.  Where  the  power  is  given  to  Congress, 
it  must  judge  of  the  means  necessary  to  effect  the  end.  The  end 
must  be  legitimate.  Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y. 
Rep.  445,  450 ; The  United  States  v.  Marigold,  9 How.  560.  Under 
clause  4,  and  the  power  to  coin  money,  Congress  has  the  power  to 
make  the  notes  of  the  Government  a legal  tender.  Metropolitan 
Bank  v.  Yan  Dyck,  27  N.  Y.  Rep.  454. 

This  power  was  greatly  assailed.  See  Federalist,  42,  43,  44 ; 1 
Elliot’s  Debates,  293,  294,  300;  2 Id.  196,  342;  Tuck.  Black. 


Is  this  a 

f)ower  or  a 
imitation  ? 
93,  94 


82,83, 

97-99. 


01.  18.] 


IMPLIED  POWERS,  138. 


139 


Com.  Appendix,  286,  287  ; Hamilton  on  Banks,  1 Hamilton’s  Works,  287, 288. 
121;  McCulloch  v.  Maryland,  4 Wheat.  406,  407,  419;  Cal- 
houn’s Essay  on  the  Constitution;  Story’s  Const.  Ch.  XXIY.  § 

1236-1258. 

“ Power  ” is  the  ability  or  faculty  of  doing  a thing ; and  employ-  Define 
ing  the  means  necessary  to  its  execution;  the  right  to  make  laws ; Power ? 
Story’s  Const.  § 12  3 7,  1241.  71,93. 

Powers  given  by  the  Constitution,  imply  the  ordinary  means  of 
execution.  (McCulloch  v.  Maryland,  4 Wheat.  409 ; 4 Elliot’s  De- 
bates, 217-221.)  Story’s  Const.  1237. 

“Expressly  delegated,”  was  in  the  Articles  of  Confederation.  269. 
(Ante  p.  9,  Art.  II).  Story’s  Const.  § 1238. 

The  plain  import  of  the  clause  is,  that  Congress  shall  have  all  the  What  is  the 
incidental  and  instrumental  powers  necessary  and  proper  to  carry  import  of 
into  execution  all  the  express  powers.  It  neither  enlarges  any tlie  clause  ? 
power  specifically  granted,  nor  is  it  a grant  of  any  new  power  to 
Congress.  Story’s  Const.  § 1243.  Some* have  gone  further  than 
this.  Governor  Randolph,  2 Elliot’s  Debates,  342 ; Mr.  Gerry  in 
1791,  4 Elliot’s  Debates,  225,  227.  Ex  parte  Coupland,  26  Tex. 

415,  416. 

The  power  must  be  expressed , or  be  an  incident.  Virginia  Report 
and  Resolutions,  Jan.  1800,  p.  33,  34;  1 Tuck.  Black.  Com.  App. 

287,  288;  President  Munroe’s  Exposition  and  Message,  4th  May, 

1822,  p.  47. 

The  degree  of  necessity  cannot  control.  1 Hamilton’s  works, 

118,  120. 

“Necessary  ” often  means  no  more  than  needful , requisite , inci-  Define  nec 
dental , useful  or  conducive  to.  Story’s  Const.  § 1248.  cssary? 

The  word  “ necessary  ” has  no  fixed  character  peculiar  to  itself,  146-149, 162- 
as  in  “ absolutely  necessary  for  executing  its  inspection  laws,”  as  164* 
contrasted  with  this  necessary  and  proper,  proves.”  Story’s  Const. 

§ 1248-1250.  See  McCulloch  v.  Maryland,  4 Wheat,  413-418. 

“Proper”  has  a sense,  admonitory  and  directory.  It  requires  Define 
that  the  means  should  be  Iona  fide  appropriate  to  the  end.  proper? 
McCulloch  v.  Maryland,  4 Wheat.  419,  420;  Story’s  Const.  § 1253. 

Among  the  necessarily  incidental  powers  may  be  classed  the  right  Wheat  may 
to  acquire  and  govern  territory ; the  right  to  contract  and  sue ; to  be  classed 
punish  offenders  on  board  ships ; to  protect  collectors  of  revenue,  i^dental6 
men  in  the  postal  service,  and  army  contractors.  (Dugan  v.  The  powers  ? 
United  States,  3 Wheat.  173,  179,  180;  United  States  v.  Tin  gey,  232-4. 

5 Peters,  115 ; United  States  v.  Bevans,  3 Wheat.  388 ; The 
Exchange,  7 Cranch,  116;  S.  C.,  2 Peters,  439;  Osborn  v.  Bank 
of  United  States,  9 Wheat.  365,  366);  Story’s  Const.  § 1256-1258, 
and  note  2. 

The  law  must  be  necessary  and  proper.  As  to  necessary,  it  269. 
must  be  borne  in  mind  that  no  power  can  execute  itself.  * * 

The  means  are  auxiliary  powers  * * ; that  is  implied 

powers.  jjcsfcs|c;fs5}!s}»5j'»l»  ^ $ 

But  the  law  must  also  be  proper  as  well  as  necessary.  * * 

That  is,  even  implied  powers  are  subject  to  important  conditions, 
when  used  as  means  to  carry  powers  or  rights  into  execution.  * 

They  must  be  carried  into  execution  so  as  not  to  injure  others ; and 


140  AFRICAN  SLAVE-TRADE,  139.  [Art.  I.,  Sec.  9, 

as  connected  witfi  and  subordinate  to  this,  that  where  the  implied 
powers  or  means  used  come  in  contact  with  the  implied  pbwers  or 
means  used  by  another,  in  the  execution  of  the  powers  or  rights 
vested  in  it,  the  less  important  should  yield  to  the  more  important, 
the  convenient  to  the  useful,  and  both  to  health  and  safety ; because 
it  is  proper  they  should  do  so.  (Calhoun’s  Discourse  on  the  Const.) 

124.  Ex  parte  Coupland,  26th  Tex.  416,  417.  The  learned  Judge  also 
quotes  to  the  same  effect  from  McCulloch  v.  Maryland. 

The  question  is  not,  whether  or  not  the  power  to  raise  armies  is 
granted ; but  whether  to  raise  them  by  conscription  is  implied. 
(Mr.  Munroe’s  plan  in  1814  contrasted.)  Id. 

What  is  the  Sec.  IX. — [l.]  The  migration  or  importation  of  such 
to  the  Mri-S  persons  as  any  of  the  States  now  existing  shall  think 
trade1?  6 proper  to  admit,  shall  not  be  prohibited  by  the  con- 
gress prior  to  the  year  one  thousand  eight  hundred 
and  eight ; but  a tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 


Define  mi-  139.  Migration  OR  Importation  of  Persons. — “ Migration” 
gration?  here,  doubtless,  means  immigration ; but  as  connected  with  K im- 
portation,” it  is  used  nearly  synonymously  with  that  term ; and 
93.  both  have  reference  to  the  “ persons  ” who  formed  the  basis  of  the 
African  slave-trade.  This  trade  was  abolished  on  the  2d  of  March, 
1807.  2 St.  428 ; 1 Brightly’s  Dig.  837.  Those  who  wish  to 

24.  consult  the  statutes  on  this  subject,  and  the  luminous  decisions 
upon  a question  now  mostly  obsolete  in  the  United  States,  are 
85-92.  referred  to  Brightly’s  Dig.,  chapter  “Slave-Trade,”  vol.  1,  p.  835, 
and  notes  thereon ; Scott  v.  Sandford,  19  How.  397 ; 1 Kent’s 
Com.  Lect.  9,  pp.  192-203  ; Cobb  on  Slavery ; Story’s  Const.  § 1331, 
1334;  2 Pitk.  History,  ch.  20,  pp.  261,  262;  2 Elliot’s  Debates, 
335,  336;  3 Id.  97,  98,  250,  251;  Federalist,  42. 

This  section  has  no  application  to  the  State  governments.  But- 
ler v.  Hopper,  1 Wash.  c.c.  499. 

Define  per-  The  word  “ person  ” may  fairly  be  said  to  refer  to  an  imported 
eon  ? African,  and  bears  some  analogy  to  the  samo  word  in  Art.  I.,  sec. 
24,  35,  46.  2,  clause  3. 

Migration  seems  appropriately  to  apply  to  voluntary  arrivals,  as 
importation  does  to  idvoluntary  arrivals ; and  so  far  as  an  excep- 
tion from  a power  proves  its  existence,  this  proves  that  the  power 
to  regulate  commerce  applies  equally  to  the  regulation  of  vessels 
employed  in  transporting  men,  who  pass  from  place  to  place  volun- 
85-92.  tarily,  as  to  those  who  pass  involuntarily.  (Gibbons  v.  Ogden,  9 
Wheat.  206-230.)  Story’s  Const.  1387. 

when  may  [2.]  The  privilege  of  the  writ  of  habeas  corpus  shall 
of not  be  suspended,  unless  when  in  cases  of  rebellion  or 
Suspended?  invasion  the  public  safety  may  require  it. 


Cl.  1,  2.] 


HABEAS  CORPUS,  140,  141. 


141 


140.  The  privilege  of  the  writ  must  here  mean  the  right  to  Define  priv- 

the  writ.  See  BurrilTs  Law  Die.,  Privilege.  ileSe  ? 

The  power  to  issue  the  writ  is  not  the  privilege ; to  ask  for  it,  is  141. 
Attorney-General  Bates  on  Habeas  Corpus,  5th  July,  1861. 

This  privilege  the  President  may  suspend  in  time  of  such  a 1S9. 
rebellion.  Id.  Only  in  the  cases  contemplated  by  the  act  of  Con- 
gress relative  to  rebellion.  Id. 

It  results  that  the  President  is  not  obliged  to  answer  a writ  of  Can  the 
habeas  corpus.  Id.  He  is  not  answerable  to  the  judiciary  as  Presi-  Resident.  ^ 
dent.  Id.  The  courts  cannot  revise  his  political  actions.  Id.  u 204. 

141.  Habeas  Corpus — No  doubt  it  means  here  to  have  the  Define 

body  ; or  the  writ  then  known  as  the  habeas  corpus,  ad  faciendum,  Habeas  ^ 
subjiciendum,  et  recepiendum,  to  do,  submit  to,  and  receive  whatso-  orPus- 
ever  the  judge  or  court  awarding  the  writ  shall  adjudge  in  that  140. 

behalf.  3 BL  Com.  131 ; 2 Kent’s  Com.  22 ; Steph.  Com.  135;  Bur- 

rill’s  Law  Die.,  Habeas  Corpus;  Story’s  Const.  § 1339.  These 
authors  give  the  several  writs. 

As  a co-ordinate  power  of  the  government,  the  President  could 
not  be  made  amenable  to  this  writ,  for  military  arrests  made  dur- 
ing the  rebellion.  Id. 

Por  the  meaning  of  the  term  Habeas  Corpus  resort  must  be  had  Where  must 
to  the  common  law ; but  the  power  to  award  the  writ,  by  any  of 
the  courts  of  the  United  States,  must  be  given  by  written  law.  tion  ? 
(Bollman,  Swartwout’s  Case,  4 Cr.  93) ; Bates  on  Habeas  Corpus ; 

Story’s  Const.  § 1339.  And  the  writ  means  the  writ  ad  subjicien- 
dum. (Luther  v.  Borden,  7 Howard,  1;  Fleming  v.  Page,  9 How. 

615 ; Cross  v.  Harrison,  10  How.  189 ; Santissima  Trinidad,  7 
Wheat.  305  ; Martin  v.  Mott,  12  Wheat.  29.  Id. 

It  matters  little  whether  it  be  called  the  peace  or  war 
power.  Id. 

It  is  a writ  of  right,  which  every  person  is  entitled  to,  ex  merito 
justitice.  (4  Inst.  290.)  2 Kent’s  Com.  Lect.  XXIY.  p.  26.  This 
lecture  fully  discusses  the  subject.  And  see  Yates  v.  Lansing,  5 
Johns.  282,  and  6.  Id.  387 ; Story’s  Const. 

The  writ  was  never  suspended  except  by  the  act  of  12th  March,  When  was  it 
1863,  12  St.  755;  2 Brightly’s  Dig.  196;  Story’s  Const.  § 1342  ; first  s^s* 

2 Jeff.  Cor.  274,  291,  344.  pended’ 

It  would  seem,  as  the  power  is  given  to  Congress  to  suspend  the 
writ  in  cases  of  rebellion  or  invasion,  that  the  right  to  judge,  140. 
whether  the  exigency  had  arisen,  must  exclusively  belong  to  that 
body.  (Martin  v.  Mott,  12  Wh.  19.)  Story’s  Const.  1342.  This 
is  denied  in  the  opinion  of  Attorney-General  Bates  to  President 
Lincoln. 

The  federal  courts  have  power  to  issue  the  writ  of  habeas  corpus  When  may 
only  when  necessary  in  aid  of  their  jurisdiction,  in  a case  pending,  the  Federal 
Ex  parte  Everts,  7 Am.  L.  R.  79;  overruling  United  States  tD^writ ?SU° 
Williamson,  4 Id.  11.  The  case  of  a father  claiming  the  custody  of 
an  infant  child,  is  not  one  in  which  a habeas  corpus  can  issue,  by  a 
court  of  the  United  States,  as  ancillary  to  the  exercise  of  its  juris- 
diction. Id.  Nor  can  a circuit  court  issue  such  a writ,  although 
the  father  be  a citizen  of  another  State,  as  the  matter  in  dispute  is 
incapable  of  a pecuniary  estimation.  Id.  A habeas  corpus  issued 


HABEAS  CORPUS,  141. 


[Art.  I.,  Sec.  9. 


142 


What  is  the 
power  of  the 
State 
Courts  ? 


of 


What  de- 
partment 
the  govern- 
ment only 
can  suspend 
the  writ? 


by  a State  court  has  no  authority  within  the  limits  of  the  sove- 
reignty of  the  United  States.  If  served  on  a marshal  having  a 
prisoner  in  custody,  under  authority  of  the  United  States,  he 
should,  by  a proper  return,  make  known  the  authority  by  which 
he  holds  him ; but,  at  the  same  time,  it  is  his  duty  not  to  obey  the 
State  process,  but  to  execute  that  of  the  United  States.  Ableman 
v.  Booth,  21  How.  506.  The  federal  courts  have  power  to  apply 
the  writ  of  habeas  corpus  to  all  cases  which  it  would  reach  at  com- 
mon law ; provided  it  be  not  issued  to  any  person  in  jail,  unless 
confined  under  and  by  color  of  the  authority  of  the  United  States. 
Ex  parte  Des  Rochers,  1 McAllister,  68.  A State  court,  on  a writ 
of  habeas  corpus  issued  at  the  relation  of  one  committed  on  process 
from  a federal  court,  cannot  go  behind  the  commitment  and  inquire 
into  the  grounds  of  it.  Williamson  v.  Lewis,  18  Leg.  Int.  172. 
The  privilege  of  the  writ  of  habeas  corpus  can  only  be  suspended 
by  act  of  Congress.  Ex  parte  Merryman,  24  Law  Rep.  78 ; 9 Am. 
L.  R.  524;  Jones  v.  Seward,  3 G-r.  431.  But  see  McQuillan’s  Case, 
9 Pittsburgh  Leg.  I.  27  ; 27  Law  Rep.  129  ; and  Bates  on  Habeas 
Corpus.  The  federal  judges  have  exclusive  jurisdiction  on  habeas 
corpus , whenever  the  applicant  is  illegally  restrained  of  his  liberty, 
under  or  by  color  of  the  authority  of  the  United  States,  whether 
by  virtue  of  a formal  commitment  or  otherwise. 


What  is  the  Ex  parte  McDonald,  9 Am.  L.  R.  662.  Much  diversity  of  opinion 
power  of  the  appears  to  exist,  as  to  the  power  of  the  State  courts  to  discharge, 
over^ersons  011  ^l(l^eas  corpus , a person  illegally  held  in  the  military  service  of 
held  in  mil-  the  United  States.  Some  judges  hold  that  the  State  courts  have 
itary  serv-  jurisdiction  to  discharge  one  enlisted  contrary  to  the  acts  of  Con- 
ice.'  gress.  Wilson’s  case,  18  Leg.  Int.  316;  Dobb’s  Case,  9 Am.  L. 

R.  565 ; Commonwealth  v.  Carter,  20  Leg.  Int.  21 ; Henderson’s 
Case,  Id.  181 ; Webb’s  Case,  10  Pittsburgh  Leg.  I.  106 ; contra , 
Phelan’s  Case,  9 Abbott,  286.  And  in  Carney’s  Case,  Chief-Justice 
Lowrie  discharged  a person  from  military  arrest,  who,  after 
having  been  exempted  from  the  conscription  by  the  board  of 
enrolment,  was  arrested  on  the  pretext  that  they  had  recon- 
sidered their  decision.  14th  August,  1863,  MS.  On  the  con- 
trary, it  has  been  held  that  the  State  courts  have  no  jurisdic- 
tion to  inquire  into  the  validity  of  the  draft  on  habeas  corpus. 
Spangler’s  Case,  11  Am.  L.  R.  596;  Jordan’s  Case,  Id.  749.  And 
that  they  have  no  power  to  discharge  from  the  custody  of  the  provost 
marshal  one  held  for  desertion,  though  enlisted  contrary  to  law. 
Shirk’s  Case,  3 Gr.  460.  This,  however,  was  said  by  Leonard,  J.,  in 
the  Supreme  Court  of  New  York,  to  be  founded  on  a misconception 
of  the  case  of  Ableman  v.  Booth ; and  Barrett,  having  been  illegally 
enlisted,  was  discharged,,  notwithstanding  a charge  of  desertion. 
Barrett’s  Case,  12  Pittsburgh  Leg.  I.  90.  See  also  Follis's  Case, 
19  Leg.  Int.  276;  United  States  v.  Wright,  20  Id.  21;  McCall’s 
Case,  Id.  108;  Commonwealth  v.  Rogers,  10  Pittsburgh  Leg.  I. 
178;  Stevens’s  Case,  24  Law  Rep.  205  ; Ex  parte  McDonald,  9 Am. 
L.  R.  662 ; United  States  v.  Taylor,  20  Leg.  Int.  284 ; In  re  Hicks 
and  Archibald,  11  Pittsburgh  Leg.  L 25 ; Com.  v.  Wright,  3 Gr.  437. 

In  Vallandigham’s  Case,  Judge  Leavitt  refused  an  applica- 
tion for  a writ  of  habeas  corpus , on  the  ground  that  the  imprison- 


01.  2.] 


143 


HABEAS  CORPUS,  141. 

ment  was  under  military  authority,  and  that,  although  a civilian,  he  And  when 
was  held  for  trial  before  a military  commission,  for  disloyal  prac-  he.1(?  the 
tices ; the  country  being  engaged  in  war,  and  the  military  necessi-  ™0werT 
ties  requiring  that  the  power  to  arrest  parties  under  such  circum- 
stances should  be  exercised  by  the  President,  as  commander -in- 
chief. Yallandigham’s  Trial,  259.  Where  a prisoner  is  held  on 
original  federal  (not  judicial)  process,  the  State  courts  have  concur- 
rent jurisdiction  with  those  of  the  United  States,  to  inquire  into 
the  legality  of  the  detention  on  habeas  corpus.  Bressler’s  Case,  3 
G-r.  447;  citing  10  Johns.  328;  7 Cow.  471;  5 Hill,  16;  2 South, 

555;  12  N.  H.  194;  11  Mass.  63  ; 24  Pick.  267;  7 Cush.  285;  7 
Barr.  336.  The  State  judges  have  no  power,  on  habeas  corpus , 
to  inquire  into  cases  of  commitment  or  detainer,  under  the 
authority  of  the  federal  government.  Hopson’s  Case,  12  Am.  L. 

R.  189.  A return  to  a habeas  corpus , by  a provost  marshal,  that  the 
prisoner  is  held  as  a deserter  from  the  army,  under  the  authority 
of  the  United  States,  is  sufficient,  without  the  production  of  the 
body ; the  State  courts  having  no  jurisdiction  to  inquire  into  the 
truth  of  the  fact  alleged  in  the  return.  Id.  The  proceedings  on  a 
writ  of  habeas  corpus  in  the  federal  courts,  are  governed  by  the 
common  law  of  England  as  it  stood  at  the  adoption  of  the  Consti- 
tution, subject  to  such  alterations  as  Congress  may  prescribe.  Ex 
parte  Kaine,  3 Blatch.  1.  See  Ex  parte  Aernam,  Id.  160. 

By  the  act  of  3d  March,  1863,  § 1,  12  Stat.  755  (2  Brightly,  196),  Give  the 
it  is  declared  : — “ During  the  present  rebellion,  the  President  of  ?ate  and  th® 
the  United  States,  whenever,  in  his  judgment,  the  public  safety  may  the  act  to 
require  it,  is  authorized  to  suspend  the  writ  of  habeas  corpus  in  any  suspend  the 
case  throughout  the  United  States,  or.  any  part  thereof.”  writ  • 

Upon  a return  to  a writ  of  habeas  corpus , that  the  relator  was 
held  by  virtue  of  an  order  issued  by  the  Secretary  of  War,  by 
direction  of  the  President,  for  endeavoring  to  prevent,  and  dis- 
couraging enlistments  in  the  army,  and  that  the  privilege  of  the 
writ  of  habeas  corpus  had  been  suspended  by  the  President,  the 
writ  was  dismissed  without  inquiry  into  the  validity  of  the  arrest, 
or  the  legality  of  the  cause  of  complaint.  Kulp  v.  Ricketts,  3 G-r. 

420.  And  see  Yallandigham’s  Trial,  259. 

On  the  15th  September,  1863,  the  President,  by  proclamation,  And  the 
suspended  the  privilege  of  the  writ  of  habeas  corpus , during  President’s 
the  rebellion,  throughout  the  United  States,  in  all  “ cases  when,  tion ?ami 
by  the  authority  of  the  President  of  the  United  States,  the  mili- 
tary, naval,  and  civil  officers  of  the  United  States,  or  any  of  them, 
hold  persons  under  their  command  or  in  their  custody, 
either  as  prisoners  of  war,  spies,  or  aiders  or  abettors  of  the 
enemy,  or  officers,  soldiers,  or  seamen,  enrolled,  drafted,  or 
mustered  or  enlisted  in  or  belonging  to  the  land  or  naval  forces 
of  the  United  States,  or  as  deserters  therefrom,  or  otherwise 
amenable  to  military  law,  or  the  rules  and  articles  of  war,  or 
the  rules  or  regulations  prescribed  for  the  military  or  naval 
service  by  authority  of  the  President  of  the  United  States,  or  for 
resisting  a draft,  or  for  any  other  offense  against  the  military  or 
naval  service.”  In  Commonwealth  ex  ret.  Cozzens  v.  Frink,  on 
habeas  corpus)  before  Judge  Thompson  of  the  Supreme  Court  of 


[Art.  L,  See.  9, 


144 


HABEAS  CORPUS,  141, 


Mrs.  Sur- 
ratt’s case  ? 


Evidence.  Pennsylvania,  it  was  decided,  that  the  courts  will  take  judicial 
notice  that  the  rebellion  no  longer  continues,  and  with  it  ends  the 
power  of  the  President  to  suspend  the  habeas  corpus , and  to  order 
the  arrest  of  a citizen,  without  warrant,  if  any  he  ever  possessed, 
by  virtue  of  this  act.  In  that  case,  a provost-marshal  made 
return  to  a writ  of  habeas  corpus , that  the  relator  was  detained  by 
him  as  a prisoner,  under  the  authority  of  the  President  of  the 
United  States;  this  return,  however,  was  adjudged  insufficient, 
and  the  prisoner  was  discharged  from  military  arrest.  Phila- 
delphia “Ledger,”  6th  July,  1865.  13  Am.  L.  R.  700. 

In  Mrs.  Surratt’s  Case,  Judge  Wylie,  of  the  Supreme  Court  of 
the  District  of  Columbia,  issued  a writ  of  habeas  corpus  to  inquire 
into  the  legality  of  her  conviction  by  a military  commission  ; but 
was  compelled  to  acknowledge  himself  powerless  to  enforce 
obedience  to  the  writ,  and  the  prisoner  was  executed  in  pur- 
suance of  the  sentence.  7th  July,  1865. 

See  2 Brightly’s  Dig.  title  Habeas  Corpus , 140, 141.  Mr.  Bright- 
ly also  refers  to  the  pamphlet  of  Horace  Binney,  against  the  con- 
stitutionality of  the  act. 

But  see  Attorney-General  Bates  on  Habeas  Corpus , 5th  July, 
1861. 

What  is  the  The  circuit  court  may  certify  a proceeding  for  a habeas  corpus, 
jurisdiction  upon  a division  of  opinion,  as  in  other  “causes”  or  “suits.” 
of  the  Su-  (Bollman’s  Case,  4 Cranch,  75;  case  of  Tobias  Watkins,  3 Pet. 

193  ; The  United  States  v.  Daniel,  6 Wheat.  562  ; Weston  v.  The 
City  Council  of  Charleston,  2 Pet.  449;  Cohens  v.  Yirginia,  6 
Wheat.  264;  Holmes  v.  Jennison,  14  Pet.  540.)  Ex  parte  Milligan, 
4 Wallace,  110-113,  117. 

If  a party  is  unlawfully  imprisoned,  the  writ  of  habeas  corpus  is 
his  appropriate  legal  remedy.  It  is  his  suit  in  a court  to  recover 
his  liberty.  (Holmes  v.  Jennison,  4 Pet.  540.)  Ex  parte  Milligan, 
4 Wallace,  113,  132. 

The  act  of  Congress  “ relating  to  habeas  corpus  and  regulating 
proceedings  in  certain  cases,”  was  approved  March  3d,  1863.  (12 

St.  755.)  Ex  parte  Milligan,  4 Wallace,  114.  This  act  was  consti- 
tutional. Id.  133. 

The  President  suspended  the  writ  by  proclamation,  dated  15th 
September,  1863.  Id.  $ 

The  suspension  of  the  writ  does  not  authorize  the  arrest  of  any 
person,  but  simply  denies  to  one  arrested  the  privilege  of  this  writ 
in  order  to  obtain  his  liberty.  Ex  parte  Milligan,  4 Wallace,  115. 
The  act  recited.  Id.  The  Chief- Justice  and  Justices  Wayne, 
Swayne  and  Miller  dissented  from  this.  Id.  137. 

The  suspension  of  the  privilege  of  the  writ  of  habeas  corpus  does 
not  suspend  the  writ  itself.  It  issues  as  a matter  of  course,  and  on 
the  return  made  to  it,  the  court  decides  whether  the  party  applying 
is  denied  the  right  of  proceeding  any  further  with  it.  Id.  131 
The  supreme  court  will  not  grant  the  writ  to  bring  up  a party 
imprisoned  for  contempt,  except  on  a certificate  of  division  of 
opinion,  because  such  a commitment  is  a criminal  proceeding.  Ex 
parte  Kearney,  7 Wheat.  38;  Anderson  v.  Dunn,  6 Wheat.  204; 
Sergeant’s  Constitutional  Law,  66,  67 ; James  Buchanan,  Pock’s 
Trial,  435. 


prerne 
Court  of  the 
United 
States  ? 

199-201. 


Does  the 
suspension 
authorize 
arrests  ? 


When  will  it 
live  in  con- 
tempt cases  ? 


Cl.  2.] 


HABEAS  CORPUS,  141. 


145 


The  laws  of  Pennsylvania  in  relation  to  the  writ  of  Habeas  When  for 
Corpus  reviewed.  Opinion  of  Attorney-Genera),  Henry  Stanbery  j^Ti^the 
in  Gormley’s  case,  6th  Oct.,  1867.  And  also  the  several  acts  of  naVy? 
Congress  of  1789,  1833,  1842,  and  1863,  upon  the  subject  of  Habeas 
Corpus.  None  of  these  acts  declare  the  jurisdiction  of  the  courts 
of  the  United  States  to  be  exclusive  of  the  State  courts.  12  Op.  258 

Prom  an  examination  of  the  acts  of  1789,  1806,  1809,  1820, 

1837,  1845,  and  July  1,  1864,  it  appears  that  minors  between 
the  ages  of  thirteen  and  eighteen  may  be  enlisted  in  the 
navy  with  the  consent  of  their  parents  or  guardians,  to  serve 
until  the  age  of  twenty-one  years ; and  that  minors  above  eighteen 
years  may  be  enlisted  without  such  consent.  12  Op.  258. 

The  weight  of  authority  is  in  favor  of  the  power  of  the  State 
courts  to  hear  the  application  of  enlisted  persons  or  persons  held  by 
United  States  authority,  and  to  discharge  or  remand  them.  Id. 

The  production  of  the  body  is  the  life  of  the  writ.  12  Op.  258. 

But  judicial  convictions  and  sentences  by  the  United  States 
courts  are  exceptions  to  the  rule. 

Neither  the  regularity  nor  validity  of  the  proceedings  can  be 
called  in  question  by  any  other  court,  State  or  Federal,  by  habeas 
corpus.  (Ableman  v.  Booth,  21  How.  506,  526.)  Stanbery ’s  opin- 
ion in  Gormley’s  Case.  12  Op.  258. 

“ We  do  not  question  the  authority  of  a State  court  or  judge,  who  Define  the 
is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of  habeas  demarcation 
corpus , to  issue  it  in  any  case  where  the  party  is  imprisoned  within  pfXsof  ° 
its  territorial  limits,  provided  it  does  not  appear  when  the  applica-  United 
tion  is  made,  that  the  person  imprisoned  is  in  custody  under  States  and 
authority  of  the  United  States.  The  court  or  judge  has  a right  to  courts  ? 
inquire  into  this  mode  of  proceeding  for  what  cause  and  by  what 
authority  the  prisoner  is  confined  within  the  territorial  limits  of  the 
State  sovereignty.  And  it  is  the  duty  of  the  marshal  or  other  per- 
son having  the  custody  of  the  prisoner,  to  make  known  to  the 
judge  or  court,  by  a proper  return,  the  authority  by  which  he 
holds  him  in  custody.  This  right  to  inquire,  by  means  of  habits 
corpus,  and  the  duty  of  the  officer  to  make  a return,  grows  neces- 
sarily out  of  the  complex  character  of  our  government,  and  the 
existence  of  two  distinct  and  separate  sovereignties  within  the 
same  territorial  space,  each  of  them  restricted*  in  its  power,  and 
each,  within  its  own  sphere  of  action,  prescribed  by  the  Constitu- 
tion of  the  United  States,  independent  of  the  other.  But  after  the 
return  is  made,  and  the  State  judge  or  court  judicially  apprised 
that  the  party  is  in  custody  under  the  authocjty  of  the  United 
States,  they  can  proceed  no  further.  They  then  know  that  the 
prisoner  is  within  the  dominion  and  under  the  jurisdiction  of 
another  government,  and  that  neither  the  writ  of  habeas  corpus  or 
any  other  process  issued  under  State  authority  can  pass  over  the 
line  of  division  between  the  two  sovereignties.  He  is  then  within 
the  dominion  and  exclusive  jurisdiction  of  the  United  States.  If 
he  has  committed  an  offense  against  their  laws,  they  alone  can 
punish  him.  If  he  is  wrongfully  imprisoned,  their  tribunals  can 
release  him  and  afford  him  redress.  And  although,  as  we  have  said, 
it  is  the  duty  of  the  marshal,  or  other  person  holding  him,  to  make 
known  by  a proper  return  the  authority  under  which  he  detains 


146  HABEAS  CORPUS,  ATTAINDER,  142.  Art.  I.,  Sec.  9, 


Stanberry. 


295. 


Attainder 
and  ex  post 
facto  t 

Define  Bill 
of  Attain- 
der ? 


Give  exam- 
ple of  such  ? 

19. 


him,  it  is  at  the  same  time  imperatively  his  duty  to  obey  the  pro- 
cess of  the  United  States,  to  hold  the  person  in  custody  under  it, 
and  to  refuse  obedience  to  the  marshal  or  process  of  any  other  govern- 
ment. And,  consequently,  it  is  his  duty  not  to  take  the  prisoner, 
or  suffer  him  to  be  taken,  before  a State  judge,  or  court,  upon  a 
habeas  corpus  under  State  authority.  No  State  judge  or  court, 
after  they  are  judicially  informed  that  the  party  is  imprisoned 
under  the  authority  of  the  United  States,  has  any  authority  to 
interfere  with  him  or  to  require  him  to  be  brought  before  them. 
And  if  the  authority  of  a State,  under  form  of  judicial  process 
or  otherwise,  should  attempt  to  control  the  marshal  or  other 
authorized  officer  or  agent  of  the  United  States  in  any  respect,  in 
the  custody  of  his  prisoner,  it  would  be  his  duty  to  resist  it  and 
call  to  his  aid  any  force  that  might  be  necessary  to  maintain  the 
authority  of  the  law  against  illegal  interference.  No  judicial  pro- 
cess, whatever  form  it  may  assume,  can  have  any  authority  out- 
side of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by  whom 
it  is  issued  ; and  an  attempt  to  enforce  it  beyond  these  boundaries 
is  nothing  less  than  lawless  violation.  (United  States  v.  Booth,  21 
How.  526?”)  Stanbery  in  Gormlev’s  Case,  12  Op.  267;  1 Kent’s 
Com.  32,  11th  Edition,  note  1. 

This  general  language  is  to  be  confined  to  process  issued  by  the 
United  States  courts,  not  to  any  other  kind  of  imprisonment.  (Hurd 
on  Habeas  Corpus , 284.)  Stanbery. 

It  was  the  duty  of  Commodore  Selfridge  to  produce  the  body  of 
the  marine.  Id.  The  decision  of  the  Secretary  of  the  Navy  was 
revoked,  and  the  Commodore  ordered  to  obey  the  writ  of  the  Court 
of  Quarter  Sessions  of  Pennsylvania.  New  York  Herald  of  7th 
Oct.,  1867. 

[3.]  No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed. 

142.  A bill  of  attainder  is  a legislative  act  which  inflicts 
punishment  without  a legal  trial.  And  it  includes  bills  of  pains 
and  penalties.  (Story’s  Const.  § 1344.)  Cummings  v.  The  State 
of  Missouri,  4 Wallace,  323.  They  may  be  directed  against  indi- 
viduals or  a whole  class.  Id.  And  inflict  punishment  absolutely 
or  conditionally.  Id.  Gaines  v.  Buford,  1 Dana,  510. 

The  Constitution  of  Missouri,  which  required  an  expurgatory 
oath  of  all  priests,  teachers,  &c.,  was  in  effect,  a bill  of  attainder. 
Cummings  v.  State  of  Missouri,  4 WalL  323,  325. 

The  test  oath  required  of  Attorneys  (note  242)  of  the  courts  of 
the  United  States,  partakes  of  the  nature  of  a bill  of  pains  and 
penalties,  and  it  is  subject  to  the  constitutional  inhibition  against 
the  passage  of  bills  of  attainder,  under  which  general  designation 
they  are  included.  Ex  parte  Garland,  4 Wallace,  377  ; II.  Stan- 
bery’s  Opinion  of  24th  May,  1867,  p.  14. 

In  Cummings  v.  The  State,  (4  Wallace,  326),  we  considered  the 
meaning  of  a bill  of  attainder  and  of  an  ex  post  facto  law  in  the 
clause  of  the  Constitution  forbidding  their  passage  by  the  States, 
and  it  is  unnecessary  to  repeat  here  what  we  there  said.  A like 


Cl.  3.] 


ATTAINDER— EX  POST  FACTO,  142,  143.  147 


prohibition  is  contained  in  the  Constitution  against  enactments  of  Ex  post  facto, 
this  kind  by  Congress.  Ex  parte  Garland,  4 Wallace,  3 "78. 

Attorneys  and  counsellors  are  not  officers  of  the  United  States.  Are  attor- 
Id.  They  are  officers  of  the  court,  and  hold  during  good  behavior,  neys  offl- 
and  can  only  be  deprived  of  their  offices  for  misconduct  ascertained  cers ' 
and  declared  by  the  judgment  of  the  court,  after  opportunity  to  be 
heard  has  been  afforded.  {Ex  parte  Heyfron,  7 Howard,  Mississippi, 

127  ; Fletcher  v.  Dangerfield,  20  California,  430.)  Id. 

Their  appointments  and  removal  are  judicial  acts,  and  they  can 
only  be  deprived  of  the  right  for  moral  and  professional  delinquency. 

(In  the  matter  of  the  application  of  Henry  W.  Cooper,  22  New 
York  (8  Smith),  81;  Ex  parte  Secombe,  19  How.  9.)  Ex  parte 
Garland,  4 Wallace,  379.  The  removal  cannot  be  effected  by  an 
act  of  Congress  requiring  new  qualifications.  (Cummings  v.  Mis- 
souri, 4 Wallace,  329.)  Ex  parte  Garland,  4 Wallace,  380.  Such 
laws  are  forbidden  both  to  Congress  and  the  States.  Id.  386. 

In  the  opinion  by  Mr.  Justice  Miller,  expressing  the  dissent  of  what  was 
Chief- Justice  Chase,  Justices  Davis,  Swayne,  and  himself,  he  the  dissent? 
defines  “ attainder,”  in  the  language  of  Sir  Thomas  Tomlins,  as 
“the  stain  or  corruption  of  blood  of  a criminal  capitally  con- 
demned ; the  immediate  and  inseparable  consequence  of  the  com- 
mon law,  on  the  pronouncing  the  sentence  of  death.”  Ex  parte 
Garland,  4 Wallace,  387. 

Bills  or  acts  of  attainder  were  laws  which  declared  certain  persons 
attainted,  and  their  blood  corrupted,  so  that  it  had  lost  all  heritable 
quality.  Ex  parte  Garland,  4 Wall.  387. 

The  power  to  pass  attainders  is  forbidden  in  this  section  to  Con-  Is  the  power 
gress,  in  section  nine  to  the  States,  and  in  section  three  of  article  ^°,r*Jid(^en  t0 
III.,  it  is  declared  that  no  attainder  of  treason  shall  work  corrup-  a es ' 
tion  of  blood  or  forfeiture,  except  during  the  life  of  the  person  159. 
attainted.  Ex  parte  Garland,  4 Wallace,  387,  388. 

Attainders  were  convictions  and  sentences  pronounced  by  the  Define  at- 
legislative  department,  instead  of  the  judicial ; the  sentence  pro-  tainders  at 
nounced  and  the  punishment  inflicted  were  determined  by  no^“™on 
previous  law  or  fixed  rule ; the  investigation  into  the  guilt  of  the 
accused,  if  any  were  made,  was  not  necessarily  or  generally  con- 
ducted in  his  presence,  or  that  of  the  counsel;  and  no  recognized 
rule  of  evidence  governed  the  inquiry.  (Story  *s  Const.  § 1344.) 

Ex  parte  Garland,  4 Wallace,  389.  (A  bill  of  attainder  may  affect 
the  life  of  an  individual,  or  may  confiscate  his  property,  or  both. 

Fletcher  v.  Peck,  6 Cr.  138  ; 1 Kent’s  Com.  Lect.  19,  p.  382.) 

The  act  of  Congress  and  the  Constitution  of  Missouri,  requiring  is. 

expurgatory  oaths,  do  not  come  within  the  definitions,  and  are  143. 

not  bills  of  attainder.  Ex  parte  Garland,  4 Wallace,  388. 

They  designate  no  criminal,  either  by  name  or  description,  de- 
clare no  guilt,  pronounce  no  sentence  and  inflict  no  punishment, 
and  can,  in  no  sense,  be  bills  of  attainder.  Justice  Miller  in  ex 
parte  Garland,  4 Wallace,  390.  See  2 Woodeson’s  Lectures,  622- 
624. 

143,  Ex  post  facto  laws  are  such  as  create  or  aggravate  crime,  Defines 
or  increase  the  punishment,  or  change  the  rules  of  evidence  for  thei^  facto  f 
purpose  of  conviction.  Calder  v.  Bull,  3 Dali.  390 ; Cummings  v.  398. 


148 


EX  POST  FACTO  LAW,  143. 


[Art.  I.,  Sec.  9. 


Cases.  Missouri,  4 Wallace,  326;  Shepherd  v.  People,  25  N.  Y.  406.  The 
phrase  only  applies  to  penal  and  criminal  laws,  which  inflict  for- 
166*  feitures  or  punishment,  and  not  to  civil  proceedings  which  affect 
private  rights  retrospectively.  Watson  v.  Mercer,  8 Pet.  110 ; 
Carpenter  v.  Pennsylvania,  17  How.  463 ; Fletcher  v.  Peck,  6 Cr. 
138 ; Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2 Gall. 
138;  United  States  v.  Hall,  2 Wash.  C.  C.  366;  Commonwealth  v. 
Lewis,  6 Binn.  271 ; Locke  v.  New  Orleans,  4 Wallace,  173.  There 
is  nothing  in  the  Constitution  which  forbids  Congress  to  pass  laws 
violating  the  obligation  of  contracts,  though  such  a power  is  denied 
to  the  States.  Evans  v.  Eaton,  Pet.  C.  C.  323 ; M^yer  v.  Knight, 
27  Tex.  719  ; Paschal’s  Annotated  Digest,  note  220,  p.  91,  and  note 
157,  p.  42. 

An  ex  post  facto  law  renders  an  act  punishable  in  a manner  it  was 
not  punishable  when  committed.  (Fletcher  v.  Peck,  6 Cranch,  138.) 
Give  an  Cummings  v.  Missouri,  4 Wallace,  326.  An  act  repealing  a law  on 

example  ? which  a grant  rests  and  annulling  the  title,  is,  in  effect,  an  ex  post 

18.  facto  law.  Idem.  The  Constitution  of  Missouri,  which  disqualified 

122.  all  persons  who  had  aided  in  the  rebellion  or  sympathized  with 

the  rebels,  unless  they  took  an  expurgatory  oath,  was  in  effect  an 
ex  post  facto  law.  Cummings  v.  Missouri,  4 Wallace,  327. 

Some  of  the  things  enumerated  in  the  oath  were  not  offenses 
when  committed ; and  therefore  are  within  the  definition  of  an  ex 
post  facto  law.  u They  impose  a punishment  for  an  act  not  pun- 
ishable at  the  time  it  was  committed.”  Id.  So  the  clauses 
which  imposed  a further  penalty  was  ex  post  facto , because  “ they 
impose  additional  punishment  to  that  prescribed  when  the  act  was 
committed!”  (Fletcher  v.  Peck,  6 Cranch,  138.)  Cummings  v. 
Missouri,  4 Wallace,  328.  (For  the  Missouri  oath,  see  Constitution 
of  Missouri,  Article  II.,  1 New  York  Convention  Manual,  p.  348.) 

This  provision  to  secure  the  liberty  of  the  citizen,  cannot  be 
evaded  by  the  form  in  which  the  power  of  the  State  is  exerted.  Id. 
To  what  In  the  cases  of  Cummings  and  Garland,  Mr.  Justice  Miller  de- 
class  of  cases  liyered  the  dissentient  opinion  for  Chief- Justice  Chase,  Justices 
f otto*  only  Davis,  Swayne,  and  himself.  He  held  that  all  the  cases  agree,  that 

apply?  the  term  ex  post  facto  is  to  be  applied  to  criminal  and  penal  cases 

alone,  and  not  to  civil  proceedings.  (Watson  v.  Mercer,  8 Pet.  88  ; 
159.  Calder  v.  Bull,  3 Dali.  386  ; Fletcher  v.  Peck,  6 Cr.  87 ; Ogden  v. 

Saunders,  12  Wheat.  266;  Satterlee  v.  Matthewson,  2 Pet.  380.) 
Ex  parte  Garland,  4 Wallace,  390,  391. 

238.  They  make  acts  done  before  the  passage  of  the  law,  and  which 
were  innocent  when  done,  criminal,  and  punish  such  actions;  or 
change  the  punishment  and  inflict  greater  punishment  than  the 
law  annexes  to  the  crime  when  committed ; or  they  alter  the  rules 
of  evidence  and  receive  less  or  different  testimony  than  the  law 
required  at  the  time  of  the  commission  of  the  offense.  (Calder  v. 
Bull,  3 Dali.  386.)  Ex  parte  Garland,  4 Wall.  391 ; Cummings  v. 
Missouri,  4 Wall.  325,  326;  Shepherd  v.  People,  25  N.  Y.  (11 
Smith)  406. 

168.  The  true  distinction,  is  between  ex  post  facto  laws  and  retrospec- 
tive laws.  (Calder  v.  Bull.)  Ex  parte  Garland,  4 Wallace,  391. 

The  minority  held  that  the  tost  oath  to  attorneys  in  the  act  of 


Cl.  4.]  CAPITATION — DIEECT  TAX,  143,  144. 


149 


Congress,  and  the  expurgatory  oath  in  the  Constitution  of  Missouri  Oath- 
are  not  within  the  definition  of  an  ex  post  facto  law.  Id. 

And  for  further  learning  on  the  subject,  see  Carpenter  y.  Penn- 
sylvania, If  How.  456 ; Baugher  v.  Nelson,  9 Grill.  299 ; The 
Federalist,  Nos.  44,  49  ; Journal  of  Convention,  Supp.  431 ; 2 Am. 

Museum,  556;  2 Elliot’s  Debates,  343-354;  Ogden  v.  Saunders, 

12  Wheat.  266,  303,  329,  330,  335;  1 Kent’s  Com.  Lect.  19,  pp. 

381,  382. 

[4.]  No  capitation,  or  other  direct  tax,  shall  be  laid,  whatis  the 

, . . . , i inhibition  ae 

unless  m proportion  to  the  census  or  enumeration  here- to  direct 
inbefore  directed  to  be  taken.  taxes’ 


144.  “ Capitation,”  [Lat.  caput,  the  head]  or,  as  they  are  more  Define  capi- 
eommonly  called,  poll-taxes,  that  is  taxes  upon  the  polls,  heads,  or  tation  ? 
persons,  of  the  contributors,  are  direct  taxes.  (See  Smith’s  Wealth 
of  Nations,  B.  5,  ch.  2,  art.  4;  The  Federalist,  No.  36;  2 Elliot’s 
Debates,  209.)  Story’s  Const.  § 954;  Hylton  v.  United  States  3 
Dali.  171;  Loughborough  v.  Blake,  5 Wh.  320-1.  This  section, 
compared  with  the  8th  and  9th,  and  the  2d  section  of  the  1st  22, 81, 65. 
art.  Hylton  v.  United  States,  1 Cond.  84.  A tax  on  carriages, 
expenses,  or  income  is  not  a direct  tax.  Id. 

Taxes  on  lands,  houses,  &c.,  are  direct  taxes.  (1  Tucker’s  Black. 

Com.  App.  232,  233;  Hylton  v.  United  States,  3 Dali,  171;  The 
Federalist,  No.  21;  Loughborough  v.  Blake,  5 Wheat.  317-325.) 

Story’s  Const.  § 954.  The  poll-tax  was  to  be  considered  direct  on 
account  of  the  slaves.  Id. 

In  a general  sense,  all  contributions  imposed  by  the  government  What  are  all 
upon  individuals  for  the  service  of  the  State,  are  called  taxes,  by  contribu- 
whatever  name  they  may  be  known,  whether  by  the  name  of  po^d  by" 
tribute,  tithe,  tailage,  impost,  duty,  gabel,  custom,  subsidy,  aid,  government 
supply,  excise,  or  other  name.  They  are  divided  into  direct  and  called  ? 
indirect  taxes.  Under  the  former  are  included  taxes  on  land,  or  77 
other  real  property;  under  the  latter,  taxes  on  articles  of  con- 
sumption. (Federalist,  Nos.  21,  36;  Smith’s  Wealth  of  Nations; 

B.  5,  ch.  2,  Pt.  2,  Arts.  1 and  2 and  App. ; Loughborough  v.  Blake,  5 
Wheat.  317-319.)  Story’s  Const.  § 950. 

If  South  Carolina  considers  the  revenue  laws  unconstitutional,  What  was 
and  has  a right  to  prevent  their  execution  in  the  port  of  Charles-  of  ? 

ton,  there  would  be  a clear  constitutional  objection  to  their  collec-nUl  1 ca  10n 
tion  in  every  port,  and  no  revenue  could  be  collected  anywhere  ; 
for  all  imposts  must  be  equal.  President  Jackson’s  Proclamation, 

10th  December,  1832  ; Story’s  Const.  § 1053a,  note  1.  It  will  also 
be  found  in  Benton’s  Thirty  Years  in  the  Senate.  No  document 
has  ever  more  strongly  stated  the  principles  upon  which  the  gov- 
ernment suppressed  the  rebellion. 

For  an  exhaustive  treatise  on  “ Taxes,”  see  Story’s  Const.  3 ed. 
book  3,  ch.  IV.. 

Direct  taxes  must  be  by  the  rule  of  apportionment.  The  License  22, 81. 
Cases,  5 Wall.  471. 


CENSUS— TAXES,  145,  146.  [Art.  I.,  Sec.  9. 

145.  “Census.” — Lat.  in  the  Roman  law.  A numbering  or 
enrollment  of  the  people,  with  a valuation  of  their  fortunes  (per- 
sonarum  et  bonorum  descriptio).  (Brissonius.)  The  right  of  being 
enrolled  in  the  census  books.  (Butler’s  Corpus  Jur.  27.)  [Law 
Lat.]  In  old  European  law,  a tax  or  tribute  ( tributum );  a toll 
(Esprit  des  lois , liv.  30,  c.  14).  Burrill’s  Law  Die.,  Census. 

In  this  clause  it  doubtless  has  reference  to  Article  1,  clause  3, 
which  declares  that  “ Representatives  and  direct  taxes  shall  be  ap- 
portioned among  the  several  States  which  may  be  included  in  the 
Union  according  to  their  respective  numbers ,”  the  basis  of  which, 
as  has  been  seen,  was  to  number  every  soul,  but  to  exclude  two- 
fifths  of  the  slaves  from  the  ratio  of  representation.*  But  since 
the  destruction  of  slavery,  all  the  “ numbers ” found  by  the  future 
censuses  must  be  counted,  unless  the  new  basis  proposed  by  the 
fourteenth  amendment  shall  have  been  adopted.  This  has  natur- 
ally been  one  of  the  great  points  of  controversy  upon  the  recon- 
struction question.  It  is  a legitimate  fruit  of  the  revolution. 

How  many  To  the  philosophical  statesman  there  has  been  nothing  *in  the 
Dorts?  re"  execufi°n  °f  the  Constitution  so  valuable  as  the  Census  Reports  and 
the  Compendiums  thereof,  running  through  eight  decades.  The 
information  and  the  classification  have  improved  every  year,  until 
the  present  able  head  of  the  bureau  has  almost  reduced  the  tables 
to  perfection.  Nothing  is  hazarded  in  saying  that,  had  these  reports 
been  carefully  studied,  the  Union  never  would  have  encountered 
its  severe  struggle. 

what  are  the  [5.]  No  tax  or  duty  shall  he  laid  on  articles  exported 
as  to  com-  from  any  State.  [6.]  No  preference  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the  ports  of 
144  one  State  over  those  of  another ; nor  shall  vessels 

81-  bound  to,  or  from,  one  State,  be  obliged  to  enter, 

clear,  or  pay  duties  in  another. 

Can  there  he  146.  “ No  Tax  or  Duty.” — The  power  is  thus  wholly  taken 
any  I?1?  011  sway  to  interfere  with  the  subject  of  exports.  Story’s  Const.  § 
expors.  ioi4;  Sergeant’s  Const,  cb.  28,  p.  346;  Rawle’s  Const,  ch.  10,  p. 

115,  116;  United  States  v.  Brig  William,  2 Hall’s  Law  Jour.  255, 
259,  260.  The  subject  was  well  considered  in  the  Convention. 
Journals  of  Convention,  222,  275,  301,  318,  377;  2 Curtis’s  Hist. 
Const.  290,  304. 

The  clause  was  stricken  out  of  the  Constitution  of  the  Confed- 
erate States.  This  clause  read:  “No  preference  shall  be  given 
by  any  regulation  of  commerce  to  the  ports  of  one  State  over  those 
of  another.” 

And  very  heavy  export  duties  were  levied  upon  cotton,  first  by 
military  orders,  and  afterward  by  statute.  Paschal’s  Annotated 
Digest,  p.  90,  § 7. 

The  omission  in  regard  to  vessels  was  to  correspond  with  their 
amendment  in  regard  to  commerce. 

147.  “No  Preference.” — [Lat.  prefero}  the  act  of  preferring.] 


150 


Define 
census  ? 


21,  22. 


24 

275,  285. 


Cl.  5,  6.] 


PREFERENCE — MONEY,  147-149. 


151 


What  means 
preference  ? 
81. 

Define  im* 
post? 
Import? 
75-77. 


Where  is 
the  power 
of  inspec- 
tion? 


77-81. 

269. 


— This  means,  that “ all  duties,  imports  and  excises,  shall  be  uniform 
throughout  the  United  States.”  See  Story’s  Const.  § 1016-1031, 

3d  edition  and  notes;  Journals  of  the  Convention,  22 ’7,  303,  304; 

Federalist,  No.  44. 

An  “ Impost,”  or  duty  on  imports,  is  a custom  or  tax  levied  on 
articles  brought  into  a country.  “Imports,”  are  the  articles 
themselves  which  are  brought  into  the  country.  “ A duty  on 
imports  ” is  not  merely  a duty  on  the  act  of  importation,  but  it  is 
a duty  on  the  thing  imported.  (Brown  v.  Maryland,  12  Wheat. 

449.)  Story’s  Const.  § 1013-1031,  1072o-1072f.  note  3. 

The  power  of  the  State  inspection  laws  is  retained,  subject  to 
the  revision  and  control  of  Congress.  (Gibbons  v.  Ogden,  9 Wheat. 

203-206,  210,  235,  236,  311 ; Brown  v.  Maryland,  12  Wheat.  419, 

438,  439,  440.)  Story’s  Const.  § 1016,  1017;  Curtis’s  Hist.  Const. 

189,  281,  282,  285,  290-297. 

Inspection  laws  form  a portion  of  the  immense  mass  of  legisla- 
tion, which  embraces  every  thing  in  the  territory  of  a State  not 
surrendered  to  the  general  government.  Inspection  laws,  quaran- 
tine laws,  and  health  laws,  as  well  as  laws  for  regulating  the  inter- 
nal commerce  of  a State,  and  others,  which  respect  roads,  fences, 

&c.,  are  component  parts  of  State  legislation,  resulting  from  the 
residuary  powers  of  State  sovereignty.  No  direct  power  over  these 
is  given  to  Congress,  and,'  consequently,  they  remain  subject  to 
State  legislation,  though  they  may  be  controlled  by  Congress  when 
they  interfere  with  their  acknowledged  powers.  (See  the  authori- 
ties above  cited;  Federalist,  Nos.  7,  22 ; Gibbons  v.  Ogden,  9 Wheat. 

199-201.) 

148.  “Vessels  Bound.” — This  clause  has  reference  to  the  Define  ves- 
coasting  trade,  and  the  intercommunication  by  lakes,  bays,  rivers,  sels  hound  ? 
and  creeks — a trade,  the  tonnage  of  which  exceeds  all  our  foreign 
tonnage  by  over  a thousand  per  cent.  The  vastness  of  this  com- 
merce and  its  total  exemption  from  taxation,  show  the  immense 
value  of  the  Union. 

A State  law  requiring  the  payment  of  pilotage  fees,  does  not 
infringe  this  clause.  Cooley  v.  Board  of  Wardens,  12  How.  314-15  ; 
Pennsylvania  v.  Wheeling  & Belmont  Bridge  Co.  18  Id.  421. 

[7.]  No  money  shall  be  drawn  from  the  treasury,  what  are  the 

• • • restrictions 

but  in  consequence  of  appropriations  made  by  law  5 over  the 
and  a regular  statement  and  account  of  the  receipts treasury  ? 
and  expenditures  of  all  public  money,  shall  be  pub- 
lished from  time  to  time. 


149.  “No  Money,”  &c. — The  definition  of  money  here,  is  suffi- 
ciently comprehensive  to  embrace  every  kind  of  currency  received 
and  expended  by  the  government. 

The  Confederate  States  Constitution  contained  this  further 
restriction : “ Congress  shall  appropriate  no  money  from  the  Treas- 
ury, except  by  a vote  of  two-thirds  of  both  houses,  taken  by  yeas 
and  nays,  unless  it  be  asked  and  estimated  for  by  some  one  of  the 
heads  of  departments,  and  submitted  to  Congress  by  the  President; 


What  means 
money  here? 
82-84,  98,  99. 

How  did  the 
Confederate 
States  Con- 
stitution 
vary? 


152 


NOBILITY — OFFICE,  149-151.  [Art.  I.,  Sec.  9. 


Money. 


What  is  the 
creditor’s 
remedy  ? 


What  are  the 
inhibitions 
as  to  nobi- 
lity and  pre- 
sents ? 


Define  no- 
bility ? 


152. 


Define 
office  ? 


or  for  the  purpose  of  paying  its  own  expenses  and  contingencies ; or 
for  the  payment  of  claims  against  the  Confederate  States,  the  justice 
of  which  shall  have  been  judicially  declared  by  a tribunal  for  the 
investigation  of  claims  against  the  government,  which  it  is  hereby 
made  the  duty  of  Congress  to  establish.”  Paschal’s  Annotated 
Digest,  pp.  90,  91.  As  it  was  contemplated  that  the  cabinet  officers 
should  have  seats  upon  the  floor,  with  the  privilege  of  discussion ; 
and  as  “ the  President  may  approve  any  appropriation,  and  disap- 
prove any  other  appropriation  in  the  same  bill,”  this  was  certainly 
a great  increase  of  executive  power.  A bill  not  estimated  for  had 
to  receive  a two-thirds  vote,  then  encounter  opposition  by  the  head 
of  department  on  the  floor ; and  finally  pass  by  a two-thirds  vote 
over  the  President’s  veto.  Paschal’s  Annotated  Digest,  pp.  8^  88, 
Art.  I.,  § 6,  7,  Clauses,  2,  2. 

A court  of  claims  was  created  by  the  act  of  24th  Feb.,  1855  ; but 
the  final  power  to  allow  or  disallow  the  judgment  of  the  court, 
still  remains.  9 St.  612  ; 1 Brightly’s  Digest,  198. 

Whether  the  public  moneys  at  the  disposaj  of  the  postmaster- 
general,  are  technically  in  the  treasury  or  not,  the  spirit  of  this 
provision  applies  to  them,  and  ought  to  be  faithfully  observed  in 
their  expenditure.  3 Opin.  13.  No  other  remedy  exists  for  a 
creditor  to  the  government,  than  an  application  to  Congress  for 
payment;  he  cannot  have  a lien  on  the  public  property  in  his  pos- 
session or  custody.  United  States  v.  Barney,  3 Hall’s  L.  J.  130 ; 
2 Wh.  Cr.  Cas.  513. 

The  reports  of  the  receipts  and  expenditures  are  made  to  Con- 
gress annually,  by  the  Secretary  of  the  Treasury  ; and  they  form 
an  important  part  of  the  executive  documents  of  the  nation. 

[8.]  No  title  of  nobility  shall  be  granted  by  the 
United  States ; and  no  person  holding  any  office  of 
profit  or  trust  under  them,  shal],  without  the  consent 
of  the  Congress,  accept  of  any  present,  emolument, 
office,  or  title  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state. 

150.  “No  Title  of  Nobility.” — [Lat.  Nobilitas.] — Being  noble, 
whether  by  antiquity  of  familf,  or  letters  patent  by  the  sovereign 
Worcester’s  Die.,  Nobility. — Here,  the  collective  body  of  titled 
and  privileged  persons  in  a State ; the  aristocratic  and  patrician 
class ; the  peerage ; as  the  English  nobility,  the  'French,  German, 
Russian  nobility.  Webster’s  Die.,  Nobility;  1 Black.  Com.  156- 
157. 

Perfect  equality  is  the  basis  of  all  our  institutions.  Story’s 
Const.  § 1351.  A privileged  order  would  certainly  destroy  our 
republican  form  of  government.  (See  sec.  X).  The  same  restric- 
tion is  upon  the  States.  Id. 

151.  “ No  Person  holding  any  Office.” — Office.  [Lat  Offi- 
cium , or  opijicium ; from  opus,  work,  and  facto , to  do.]  Here  a public 
charge  or  employment.  Worcester’s  Die.,  Office. — Thus  a mar- 


Cl.  7,  1.]  INHIBITIONS — STATES,  152,  153,  154. 


153 


shal  of  the  United  States,  cannot  at  the  same  time,  hold  the  office  Money, 
of  commercial  agent  of  France.  6 Op.  409. 

As  to  the  object,  see  the  Federalist  (No.  84 ; 1 Tuck.  Black)  Com. 

App.  295-296;  Rawle  on  the  Const,  ch.  10,  p.  120;  Story’s  Const. 

§ 1352.  An  amendment  was  proposed  in  1803,  extending  the 
prohibition  to  all  private  citizens.  But  it  has  never  yet  been  rati- 
fied. Story’s  Const.  § 1352. 

Sec.  X.  [1.]  No  State  shall  enter  into  any  treaty,  wimt  are  the 
alliance,  or  confederation ; grant  letters  of  marque  and  fniubitions 
reprisal;  coin  money;  emit  bills  of  credit;  make  any  suite?  Q 
thing  but  gold  and  silver  coin  a tender  in  payment  of 
debts  ; pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobility. 

152.  Remark.  —It  will  be  observed  that  to  Congress  is  either  Which  of 

given  or  denied  all  the  powers  herein  inhibited  to  the  States  ex-  these  powers 
cept  “ to  make  anything  but  gold  and  silver  coin  a tender,”  “emit  Rented  to  °r 
bills  of  credit,”  or  “pass  any  law  impairing  the  obligation  of  con-  the  United 
tracts.”  Thus  to  the  President,  by  and  with  the  advice  of  the  States? 
Senate,  is  given  the  right  to  enter  into  treaties,  alliances,  or  confed-  178. 
erations.  To  Congress  is  given  the  right  to  coin  money  and  grant  97,  98. 
letters  of  marque  and  reprisal ; and  from  Congress  is  denied  the  99,  178. 
power  to  create  a title  of  nobility  or  pass  ex  post  facto  laws.  About  150. 

the  power  of  Congress  to  emit  bills  of  credit,  make  tenders  in  pay-  153. 

ment  of  debts,  or  to  pass  laws  impairing  the  obligation  of  contracts, 

the  Constitution  is  silent.  Neither  of  these  powers  is  reserved  to 
the  States  under  the  tenth  amendment ; for  they  are  expressly  pro- 
hibited. Those  who  deny  them  to  Congress  do  so  upon  the  ground, 
that  because  they  are  denied  to  the  States  and  not  granted  to  Con- 
gress, they  do  not  exist  in  either  government.  But  on  the  other 
hand,  it  is  answered,  that  the  right  to  borrow  money  on  the  credit 
of  the  United  States  carries  the  right  to  emit  bills  of  credit  and  to  78,  82. 
make  them  lawful  tenders ; and,  as  ex  post  facto  laws  relate  to  143, 156. 
crimes,  the  power  to  pass  bankrupt  laws  carries  along  the  power 
to  impair  the  obligation  of  contracts  by  the  Federal  Government.  94-96. 

The  whole  ground  is  narrow ; and  hence  we  have  to  be  controlled 
by  the  precedents  of  the  past  and  what  is  necessary  and  proper. 

None  deny  the  concurrent  power  of  Congress  to  make  gold  and 
silver  coin  a tender  in  payment  of  debts.  But  the  argument  is 
that  it  can  make  nothing  else  a lawful  tender. 

153.  To  ENTER  INTO  ANY  TREATY,  &C.,  TO  11  COIN  MONEY.” — Why  are 

These  powers  being  national  cannot  exist  in  the  States.  Federal-  national 
ist,  No.  44;  Rawle’s  Const,  ch.  10,  p.  136.  They  belonged  to  the  Con-  e' 

federation,  ante , p.  11,  Art.  6.  The  same  remark  is  true  as  to  letters  17s  195. 
of  marque  and  reprisal  and  coining  money.  Story’s  Const.  § 

1354-1357. 

154.  Emit  Bills  of  Credit. — To  constitute  a bill  of  credit,  Define  a bill 
within  the  Constitution,  it  must  be  issued  by  a State,  involve  the  of  credit  ? 

15 


154  BILL  OF  CREDIT— TENDERS,  154,  155.  [Art.  L,  Sec.  10, 


400.  faith  of  the  State,  and  be  designed  to  circulate  as  money,  on  the 
credit  of  the  State,  in  the  ordinary  uses  of  business.  Briscoe  v. 
Bank  of  Kentucky,  11  Pet.  257,  311;  Woodruff  v.  Trapnall,  10 
How.  204.  As  to  what  are  such  bills  of  credit,  see  Craig  v.  Mis- 
88.  souri,  4 Pet.  410,  434-448 ; same  case,  8 Pet.  40 ; Woodruff  v. 
Trapnall.  10  How.  205;  McFarland  v.  The  Bank  of  Arkansas,  4 
Ark.  410;  Darrington  v.  State  Bank  of  Alabama,  13  How.  12; 
Curran  v.  Arkansas,  15  How.  317-18.  The  loan  certificates  of 
Missouri  were  bills  of  credit,  and  formed  no  valid  consideration  for 
a contract.  Mankster  v.  The  State,  1 Mo.  321  ; Lopez  v. 'The  State, 
1 Mo.  451;  Craig  v.  Missouri,  4 Pet.  410,  435.  And  see  State  of 
Indiana  v.  Warm,  6 Hill,  33 ; Delafield  v.  State  of  Illinois,  26  Wend., 
192  ; Sturges  v.  Crowinshield,  4 Wheat.  204r-205 ; Madison’s  Let- 
ter to  C.  J.  Ingersol,  2d  Feb.  1811.  Story’s  Const.  § 1358-1373. 

Bills  of  credit  in  the  colonies  were  understood  to  apply  to  all 
paper  money,  whether  funds  were  provided  for  their  repayment  or 
not.  (See  2 Hutch.  Hist.  208,  381.)  Story’s  Const.  § 1368.  This 
author  and  the  cases  cited  exhaust  the  whole  learning  upon  the 
subject. 

“ Emit  bills  of  credit,”  was  omitted  in  the  Constitution  of  tho 
Confederate  States.  The  result  was  that  many  of  the  States 
issued  large  amounts  of  bills  intended  to  circulate  as  money. 
Paschal’s  Annotated  Digest,  p.  91,  Arts.  806-811. 


269. 


80,  97,  9S. 


Where  (toes  155.  “ MAKE  ANY  THING-  BUT  GOLD  AND  SILVER  COIN  A TENDER 
t!>ei cKaTten S IX  ^AYMENT  0P  Debts.” — The  things  in  this  article,  not  also  pro- 
ders  reside?  hibited  to  Congress,  are  allowed  to  be  exercised  by  it,  if  the  power 
come  within  the  purview  of  either  of  the  express  or  implied 
powers  granted.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep. 
418,  423,  442. 

•‘The  interpretation  which  I give  to  this  clause  is,  that  the 
United  States  possess  power  to  make  any  thing  besides  gold  and 
silver  a legal  tender.  * * They  have  a right  to  make  bank 

paper  a legal  tender.  Much  more  then,  have  they  the  power  of 
causing  it  to  be  received  by  themselves  in  payment  of  taxes.”  (4 
Elliot’s  Debates,  367,  368;  Mr.  Alston  of  South  Carolina.)  Metro- 
politan Bank  v.  Van  Dyck,  27  N.  Y.  R.  418;  The  Pennsylvania 
Cases,  52  Penn.  St.  R.  (2  Smith)  1—100. 

There  is  no  express  delegation  of  power  to  Congress  to  legislate 
on  the  subject  of  legal  tenders,  neither  is  there  any  prohibition  in 
the  Constitution,  upon  Congress  forbidding  such  legislation,  or 
declaring  what  shall  or  shall  not  make  a legal  tender ; the  omission 
vras  not  accidental.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y. 
422. 


What  may 
be  a legal 
tender  ? 


It  was  the  opinion  of  Mr.  Madison,  that  Congress  would  have 
the  power  to  declare  bills  or  notes  issued  on  the  credit  of  the 
United  States,  a legal  tender,  unless  prohibited  by  the  Consiitu- 
tion.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  419,  420,  422. 
423,  426. 

The  first  legal  tender  act  was  in  favor  of  foreign  coin.  (Act  1 >t 
88.  July,  1793.)  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  424,  where 
are  cited  all  the  acts  on  the  subject. 

A contract  dated  16th  December,  1851,  payable  “in  gold  or  silver 


01.  1.] 


CONTRACTS,  155,  156,  157. 


155 


coin,  lawful  money  of  the  United  States,”  may  be  paid  in  United 
States  legal  tender  notes,  as  lawful  money  of  the  United  States. 

Rodes  v.  Bronson,  34  N.  Y.  R.  649.  When  the  contract  matured,  it 
was  payable  in  the  only  lawful  money  of  the  country.  The  power  83,  97-99. 
of  Congress  to  declare  treasury  notes  legal  tenders  for  debts  con- 
tracted previously  to  its  passage,  as  well  as  those  contracted  sub- 
sequently, has  been  affirmed  by  this  court.  (Metropolitan  Bank 
v.  Van  Dyck,  34  N.  Y.  R.  654.)  Rodes  v.  Bronson,  34  N.  Y. 

654. 

A law  of  Congress  to  change  the  currency  in  which  a contract  Does  a law 
may  be  discharged,  does  not  impair  the  obligation  of  the  contract.  c^an%eS9 
(Faw  v.  Marsteller,  2 Cr.  20 ; Dowmans  v.  Dowmans,  1 Wash,  the3 currency 
Virg.  26  ; Pong  v.  Lindsay,  Dyer,  82  ; Barrington  y.  Potter,  Dyer,  impair  the 
81  B.  fol.  67  ; United  States  v.  Robertson,  6 Pet.  644;  Conkey  v.  contraGts? 
Hart,  4 Kern.  22;  Mason  v.  Haile,  12  Wh.  370.)  Metropolitan 
Bank  v.  Yan  Dyck,  27  N.  Y.  Rep.  455-8. 

The  above  authorities  also  settle,  that  if  a contract  be  made 
payable  in  a particular  currency,  and  that  currency  ceases  to  exist 
before  it  is  due,  it  must  be  discharged  in  the  lawful  currency  at 
the  date  of  maturity.  See,  particularly,  Faw  v.  Marsteller,  2 Cr. 

20,  and  Metropolitan  Bank  v.  Yan  Dyck,  27  FT.  Y.  Rep. 

A law  will  notvbe  held  to  be  unconstitutional,  unless  it  is  clearly  When  will  a 
and  plainly  so.  (Morris  v.  The  People,  3 Den.  381;  Ex  parte  la^' be  held 
McCollom,  1 Cow.  564 ; Fletcher  v.  Peck,  6 Cr.  87  ; Ogden  v.  San-  stitutionaT?* 
ders,  12  Wh.  29  ; Adams  v.  Howe,  14  Mass.  345.)  Metropolitan 
Bank  v.  Yan  Dyck,  27  N.  Y.  Rep.  460. 

156.  “Pass  any  Bill  of  Attainder  or  Ex  Post  Facto  Law.”  Define  ex 
-—These  terms  relate  to  criminal  law  only ; but  as  the  words  “ ex  post  facto 
post  facto  law,  or  law  impairing  the  obligation  of  contracts,”  are  aw' 
only  separated  by  a comma,  many  of  the  judges  treat  the  words  in  142-143. 
this  connection  as  synonymous ; and  thus  seem  to  make  ex  post 

facto  apply  to  contracts. 

The  critical  reader  is  referred  to  the  phrase  in  Burrill’s  law  dic- 
tionary, for  the  civil  law  origin  of  the  term,  wherein  will  be  found 
its  exact  application.  Quoe  ab  initio  inutilis  fuit  institution  ex  post 
facto  non  convalescere  non  potest.  Translated:  An  institution  or 
act  which  was  of  no  effect  at  the  beginning  (when  made  or  done), 
cannot  acquire  force  or  validity  from  after  matter.  Nunquam 
crescit  ex  post  facto  prceteriti  delicti  cestimatio.  The  estimate  of  the 
character  of  a past  offense  is  never  enhanced  by  after  matter. 

See  1 Kent’s  Com.  409.  Here  follows  an  instance  where  it  is 
used  in  reference  to  contracts. 

Ex  post  facto , literally  construed,  operating  upon  a previous 
fact,  yet  the  restricted  sense  stated,  is  the  one  in  which  it  has 
always  been  held.  It  was  the  sense  in  which  it  was  understood 
at  the  time  the  Constitution  was  adopted,  both  in  this  country  and 
in  England.-  (1  Blackstone’s  Com.  46;  Calder  v.  Bull,  3 Dallas, 

390.)  Locke  v.  New  Orleans,  4 Wallace,  173,  174. 

157.  The  Obligation  of  the  Contract. — The  laws  which  what  laws 
exist  at  the  time  and  place  of  the  making  of  the  contract,  enter  enter  into 
into  and  form  a part  of  it ; and  they  embrace  alike  those  which tiSiof the* 
affect  its  validity,  construction,  discharge  and  enforcement,  contract? 


[Art.  I.,  Sec.  10, 


156 


155-159. 

160-161. 


How  are 
the  validity 
and  remedy 
connected  ? 


155. 


What  of  the 
repeal  of 
bank 
charters  ? 

157. 


What  is  tho 
doctrine  of 
bridges  ? 


CONTRACTS,  157. 


(G-reen  v.  Biddle,  8 Wheat.  92;  Bronson  v.  Kinzie.  1 How.  319; 
McCracken  v.  Hayward,  2 How.  612;  People  v.  Bond,  10  Cali- 
fornia, 570;  Ogden  v.  Sanders,  12  Wheat.  231.)  Yon  Hoffman  v. 
City  of  Quincy,  4 Wallace,  550.  (This  principle  has  been  denied. 
Farnsworth  v.  Vance,  2 Cold  well  (Tenn.)  Rep.  111.) 

As,  if  the  acts  so  change  the  remedies  as  materially  to  impair  the 
rights  and  interests  of  the  owner,  they  are  just  as  much  a violation 
of  the  compact  as  if  they  overturned  his  rights  and  interests. 
(G-reen  v.  Biddle,  8 Wheat.  92.)  Yon  Hoffman  v.  City  of  Quincy, 
4 Wallace,  551.  Or  the  Illinois  two-thirds  twelve  months  stay 
law.  (1  Howard,  297.)  Id.  Or  the  State  bankrupt  insolvent 
laws,  as  to  anterior  contracts.  Sturges  v.  Crowinshield,  4 Wheat. 
122.)  Id.  ' But  not  as  to  subsequent  contracts.  Ogden  v. 
Sanders,  1 Wheat.  213.)  Id. 

The  ideas  of  validity  and  remedy  are  inseparable,  and  both  are 
parts  of  the  obligation,  which  is  guarantied  by  the  Constitution 
against  invasion.  The  obligation  of  the  contract  “is  the  law 
which  binds  the  parties  to  perform  their  agreement.”  (Sturges  v. 
Crowniu shield,  12  Wheat.  257.)  Yon  Hoffman  v.  City  of  Quincy, 
4 Wallace,  552;  Story  v.  Furnam,  25  N.  Y.  (11  Smith),  223. 
Where  the  State  incorporated  a bank,  with  no  other  stockholder 
than  the  State,  which  issued  bills,  for  which  all  the  bauk  assets 
were  legally  bound  (and  which  provided  that  the  issues  were  re- 
ceivable for  all  public  dues),  laws  which  withdrew  the  funds  from 
the  bank,  and  appropriated  them  to  various  other  purposes  than 
paying  the  notes  of  the  bank,  impaired  the  obligation  of  the  con- 
tract, and  were  unconstitutional.  (Bronson  v.  Kinzie,  1 How. 
311;  McCracken  v Haywa.rd,  2 How.  608.)  Curran  v.  The  State 
of  Arkansas,  15  How.  310.  The  guaranty  that  the  bills  were 
receivable  for  all  public  dues,  was  a contract  with  the  bill-holders ; 
and  to  repeal  the  guaranty,  impaired  the  contract  as  to  bills  then 
in  circulation.  Woodruff  v.  Trapnall,  10  How.  205 ; affirmed. 
Hawthorn  v.  Calefif,  2 Wall.  23.  A law  repealing  a bank  charter, 
does  not  impair  the  obligation  of  a contract,  because  the  property 
bona  fide  held,  is  still  a fund  for  the  creditors.  (Minna  v.  The 
Potomac  Co.  8 Pet.  281.)  Curran  v.  Arkansas,  15  How.  310,  331 ; 
This  seems  not  to  be  so,  as  to  creditors,  where  the  corporators  are 
liable  personally  for  the  issues.  Corning  v.  McCulloch,  1 Comst. 
47,  49;  Conant  v.  Yan  Schaick,  24  Barb.  87  ; Bronson  v.  Kinzie,  1 
How.  311;  Hawthorne  v.  Calefif,  Id.  311.  The  legislature  may 
repeal  the  guaranty  that  the  bills  shall  be  received  for  all  public 
dues ; but  the  repeal  only  operates  upon  future  issues,  the  guar- 
anty remaining  as  to  those  outstanding.  Woodruff  v.  Trapnall,  10 
How.  206. 

A bridge  charter,  which  declared  that  no  other  bridge  should  be 
built  within  the  designated  limits,  is  a contract,  within  the  mean- 
ing of  the  Constitution.  Bridge  Proprietors  v.  Hoboken  Co.  1 
Wall.  146-7.  But  a railroad  bridge  is  not  a bridge,  within  tho 
meaning  of  a statute  of  New  Jersey  of  1790.  Bridge  Proprietors 
v.  Hoboken  Co.  1 Wall.  147.  A railroad  bridge  does  not  neces- 
sarily impair  the  right  of  an  ordinary  toll-bridge.  (Mohawk 
Bridge  Co.  v.  Utica  & S.  R.  R.  Co.  6 Paige,  564 ; Thompson  v. 


01.  1.] 


CONTEACTS,  157. 


157 


New  York  & Harlem  R.  R.  Co.  3 Sandf.  625  ; McRae  v.  Wilming-  400-402, 
ton  Raleigh  R.  R.  Co.  17  Conn.  56 ; Enfield  Toll-bridge  v.  The 
Hartford  & New  Haven  R.  R.  Co.  17  Conn.  56 ;)  Bridge  Pro- 
prietors v.  Hoboken,  1 Wall.  150-1.  As  to  what  a ferry  privi- 
lege is,  see  Conway  v.  Taylor,  1 Black.  603 ; Hartford  Bridge  Co. 
v.  Union  Ferry  Co.  29  Conn.  210.  It  may  be  granted  by  Ken- 
tucky without  the  concurrent  assent  of  Ohio.  Id.  (Cites  Trustees 
of  Newport  v.  Taylor,  6 J.  J.  Marsh,  134) 

A contract  is  an  agreement  to  do  or  not  to  do  a particular  Define  a 
thing.  (Sturges  v.  Crowinshield,  4 Wheat.  197  ; Green  v.  Biddle,  contract  ? 

8 Wheat.  92;  Ogden  v.  Saunders,  12  Wheat.  2 5 6,  2 9 7,  30  2,  3 1 6,  160. 

335;  Gordon  v.  Prince,  3 Wash.  C.  C.  Rep.  319.)  Story’s  Const. 

§ 1376. 

This  provision  has  never  been  understood  to  embrace  other  con-  To  what 
tracts  than  those  which  respect  property,  or  some  object  of  value,  tr^tesg 
and  confer  rights  which  may  be  asserted  in  a court  of  justice,  the  inhibi- 
Dartmouth  College  v.  Woodward,  4 Wh.  629.  A private  charter  tion  apply  ? 
is  such  a contract.  Id.  518.  So  also  an  act  incorporating  a bank- 
ing institution.  Providence  Bank  v.  Billings,  4 Pet.  514  ; Gordon 
v.  Appeal  Tax  Court,  3 How.  133 ; Planter's  Bank  v.  Sharp,  6 Id. 

301 ; Curran  v.  Arkansas,  15  Id.  304.  And  a grant  of  land  by  the 
legislature  of  a State.  Fletcher  v.  Peck,  6 Cr.  87  ; Terrett  v.  Tay- 
lor, 9 Id.  43.  And  so  is  a compact  between  two  States.  Green  v. 

Biddle,  8 Wh.  1;  Allen  v.  McKean,  1 Sumn.  276.  And  see  2 
Pars,  on  Cont.  509.  An  appointment  to  a salaried  office,  however, 
is  not  a contract,  within  the  meaning  of  the  Constitution.  Butler 
v.  Pennsylvania,  10  How.  402;  Commonwealth  v.  Mann,  5 W.  & 

S.  418 ; Commonwealth  v.  Bacon,  6 S.  & R.  322  ; Barker  v.  Pitts- 
burgh, 4 Barr,  49;  Jones  v.  Shaw,  15  Tex.  577.  All  contracts 
are  subject  to  the  right  of  eminent  domain  existing  in  the  several 
States ; and  the  exercise  of  this  power  does  not  conflict  with  the 
Constitution.  West  River  Bridge  Co.  v.  Dix,  6 How.  507 ; Bundle 
v.  Delaware  & Raritan  Canal  Co.,  14  Id.  80  ; The  State  v.  De  Les- 
dernier,  7 Tex.  99. 

It  is  a compact  between  two  or  more  persons.  (Fletcher  v.  160. 
Peck,  6 Cranch,  136;  s.  C.  2 Pet.  Cond.  321.)  Story’s  Const. 

§ 1376. 

A law  of  a State,  issuing  transferable  swamp  land-scrip,  and 
exempting  the  land  from  taxation,  for  ten  years  or  until  reclaimed, 
constituted  a contract,  between  the  State  and  the  holders  of  the 
land-scrip,  issued  under  the  act.  McGee  v.  Mathis,  4 Wallace, 

156. 

An  act  of  incorporation  is  a contract  between  the  State  and  the  Is  can  act  of 
stockholders.  All  courts,  at  this  day,  are  estopped  from  question- 
ing  the  doctrine.  (Dartmouth  College  v.  Woodward,  4 Wheat.  418.)  contract? 
The  Binghampton  Bridge,  3 Wallace,  72. 

Such  contracts  are  construed  liberally  by  the  government.  The 
Binghampton  Bridge,  3 Wallace,  74.  Nothing  is  to  be  taken  by 
intendment  again»L  the  State.  The  Binghampton  Bridge,  3 Wal- 
lace, 75;  The  Charles  River  Bridge,  11  Peters,  544;  Jefferson  Br. 

Bank  v.  Skelley,  1 Black.  446.  But  the  State  may  grant  fran- 
chises by  reference  to  another  statute  on  the  same  subject-matter. 


158 


EETEOSPECTIYE,  158.  [Art.  I,  Sec.  10, 


400. 


What  con- 
tracts are 
included  ? 

155. 


What  of 
retrospec- 
tive laws? 

571. 


155-156. 


Id.  After  the  grant  of  such  franchises,  the  restraint  is  upon  the 
legislature  itself.  Id. 

The  Supreme  Court  of  the  United  States  will  determine  for 
itself,  irrespective  of  the  State  decisions,  what  is  the  contract  of 
a State,  Jefferson  Branch  Bank  v.  Skelley,  1 Black  (U.  S.),  442, 
443. 

It  includes  executory  as  well  as  executed  contracts.  (Fletcher  v. 
Peck,  6 Cranch,  131 ; s.  0.  2 Pet.  Cond.  R.  321,  322.)  Story’s 
Const.  § 1376.  Whoever  may  he  the  parties  to  them.  (Fletcher  v. 
Peck,  6 Cranch,  87.)  Yon  Hoffman  v.  City  of  Quincy,  4 Wallace, 
549. 

Because  the  State  is  not  a single  sovereign,  hut  a part  of  the 
Union,  whose  Constitution  is  supreme  and  imposes  limits  upon  the 
legislatures  of  the  several  States.  (New  Jersey  v.  Wilson,  7 
Cranch.  164 ; Terret  v.  Taylor,  9 Cranch,  43.)  Yon  Hoffman  v. 
City  of  Quincy,  4 Wallace,  550. 

Also  express  and  implied  contracts.  The  grantor  is  estopped  by 
both.  (Fletcher  v.  Peck,  6 Cr.  R.  137  ; s.  C.  2 Cond.  R.  321,  322; 
Dartmouth  College  v.  Woodward,  4 Wheat.  R.  657,  658,  688,  689.) 
1 Story’s  Const.  § 1377. 

And  assessments  upon  the  stockholders  of  banks  which  have 
gone  into  liquidation.  Commonwealth  v.  Cochituate  Bank,  3 Allen, 
Mass.  42. 


158.  Merely  Retrospective. — Because  a law  is  merely  retro- 
spective, does  not  bring  it  within  the  prohibition.  Locke  v.  New 
Orleans,  4 Wallace,  173. 

The  Constitution  does  not  prohibit  the  States  from  passing  retro- 
spective laws  generally,  but  only  ex  post  facto  laws.  Watson  v. 
Mercer,  8 Pet.  110.  Retrospective  laws,  divesting  vested  rights, 
are  impolitic  and  unjust ; but  they  are  not  ex  post  facto  laws  within 
the  meaning  of  the  Constitution,  nor  repugnant  to  its  provisions 
(Albee  v.  May,  2 Payne,  74),  unless  they  impair  the  obligation  of  a 
contract.  Baltimore  & Susquehanna  R.  R.  Co.  v.  Nesbit,  10  How. 
401.  Should  a statute  declare,  contrary  to  the  general  principles 
of  law,  that  contracts  founded  upon  an  illegal  or  immoral  consider- 
ation, whether  in  existence  at  the  time  of  passing  the  statute,  or 
which  might  hereafter  be  entered  into,  should  nevertheless  be  valid 
and  binding  upon  the  parties,  all  would  admit  the  retrospective 
character  of  the  enactment ; but  it  would  not  be  repugnant  to  the 
Constitution  of  the  United  States.  Satterlee  v.  Mathewson,  2 Pet. 
412;  Curran  v.  Arkansas,  15  How.  10;  Aspinwall  v.  The  Commis- 
sioners, &c.,  22  How.  365;  Dartmouth  College  v.  Woodward,  4 
Wh.  628.  For  the  same  inhibitions  in  the  Constitution  of  Texas, 
see  Paschal’s  Annotated  Dig.  168,  170. 

The  prohibition  has  no  reference  to  the  degree  of  impairment. 
The  largest  and  least  are  alike  forbidden.  Stllrges  v.  Crowinskield, 
12  Wheat.  257;  Green  v.  Biddle,  8 Wheat.  84;  Yon  Hoffman  v. 
City  of  Quincy,  4 Wall.  552  ; Planter’s  Bank  v.  Sharp,  0 How.  327  ; 
Farnsworth  v.  Reaves,  2 Coldwell,  111.  Its  value  must  not  be 
diminished  by  legislation.  (Planter’s  Bank  v.  Sharp,  6 How.  327.) 
Yon  Hoffman  v.  City  of  Quincy,  4 Wallace,  553. 


Cl.  1.] 


EXEMPTIONS— STAY  LAWS,  159,  160. 


159 


That  is  directly,  and  not  incidentally,  and  only  by  consequence. 

Yon  Hoffman  v.  City  of  Quincy,  4 Wall.  553. 

The  States  may  abolish  imprisonment  for  debt.  Beers  v.  Hough- 
ton, 9 Peters,  359;  Mason  v.  Haile,  12  Peters,  373;  Sturgis  v. 
Crowninshield,  4 Peters,  200.)  Yon  Hoffman  v.  City  of  Quincy,  4 
Wallace,  553. 

159.  Exemptions. — And  the  States  may  exempt  from  forced  How  do 
sale  the  necessary  implements  of  agriculture,  the  tools  of  a me-  exemption 
clianic,  and  articles  of  necessity  in  household  furniture — the  tilings  contracts  v 
which  in  civilized  communities  belong  to  the  remedy.  Yon  Hoff- 157-160 
man  v.  City  of  Quincy,  4 Wall.  553.  The  exact  limit  between  right 

and  remedy  must  be  determined  in  every  case  upon  iis  own  circum-  401. 
stances.  Id.  If  the  right  be  impaired  the  law  is  void.  (Bronson 
v.  Kinzie,  1 Howard,  311 ; McCracken  v.  Hayward,  2 How.  608.) 

Yon  Hoffman  v.  City  of  Quincy,  4 Wallace,  554.  The  question 
between  the  remedy  and  the  other  parts  of  the  contract  cannot 
be  considered  res  Integra.  (1  Kent’s  Com.  456 ; Sedg.  on  Stat. 
and  Const.  Law,  652;  Mason  v.  Haile,  12  Wheat.  379.)  Id. 

A State  may  disable  itself  by  contract  from  exercising  its  taxing 
power  in  particular  cases.  (New  Jersey  v.  Wilson,  7 Cranch,  166  ; 

Dodge  v.  Woolsey,  18  How.  331 ; Piqua  Branch  v.  Knoop,  16  How. 

331.)  Yon  Hoffman  v.  City  of  Quincy,  4 Wallace,  554. 

The  legal  obligation  of  a contract  consists  in  the  remedy  given  In  what 
by  law  to  enforce  its  performance,  or  to  make  compensation  for  the  jloe3 
failure  of  performance.  Johnson  v.  Higgens,  3 Metcf.  (Kv.),  566.  [ion  consist"? 
A law  which  forbade  the  rendering  of  judgments  for  a given  time 
was  constitutional.  Id.  So,  where  a State  has  authorized  a muni-  157 
cipal  corporation  to  contract  and  tax,  to  meet  its  engagements,  the 
power  cannot  be  withdrawn  until  the  contract  is  satisfied.  (People 
v.  Bell,  10  California,  570;  Dominic  v.  Sayre,  3 Sand.  555.)  Yon 
Hoffman  v.  City  of  Quincy,  4 Wallace,  554.  Jt  is  a trust  which 
neither  the  State  nor  corporation  can  annul.  Id. 

160.  Stay  Laws. — Statutes  relating  to  levies  on  executions  How  do 
may  be  applicable  to  levies  made  before  their  enactment,  as  they  ?ta?  !aws 
affect  the  remedy  and  not  the  right.  Grosvenor  v.  Chesley,  48  contracts  ? 
Maine,  369;  Coriell  v.  Ham,  4 Greene  (Iowa).  455  ; Swift  v.  Elet- 159 
cher,  6 Minn.  550. 

But  redemption  laws,  as  to  judgments  upon  anterior  contracts, 
are  unconstitutional.  Scobey  v.  Gibson,  17  Ind.  572;  Iglehart  v. 

Wolfin,  20  Ind.  32. 

And  the  laws  for  the  release  and  discharge  of  securities.  Swift 
v.  Fletcher,  6 Minn.  550. 

So  of  laws  allowing  the  debtor  to  remove  without  subjecting  his 
property  to  sale,  so  far  as  concerns  judgment  liens  accruing  prior 
to  their  passage.  Tillotson  v.  Millard,  7 Minn.  513. 

The  legislature  cannot  extend  the  time  for  redeeming  lands  sold 
at  tax  sales.  Robinson  v.  House,  13  Wis.  341.  Nor  apply  ap- 
praisement laws  to  anterior  contracts.  Rosier  v.  Hale,  10  Iowa 
(2  With.),  470. 

The  Supreme  Court  of  the  United  States  will  determine  for  itself,  ^ g aeon 
iriespective  of  the  decision  of  the  State  courts,  what  is  a contract  strue? 


160 


CONTRACTS — REMEDY,  161.  [Art.  I.  bee.  10, 


By  what  ^ within  the  meaning  of  the  Constitution.  Jefferson  Branch  Bank  v. 
J™1  ^e'  8*  Skelley,  1 Black,  443.  A law  authorizing  a redemption  of  property 
be  governed  sold  b 7 forced  sale,  impairs  the  obligation  of  a contract,  and  is 
in  defining  a unconstitutional  as  to  mortgages  and  contracts  of  anterior  date  % to 
«J£tract?  the  redemption  law.  Bronson  v.  Kinzie,  1 How.  311 ; McCracken 
loo,  109.  v.  Hayward,  2 How.  612-615;  Gan tly  v.  Ewing,  3 How.  716-7; 

Howard  v.  Bugbee,  24  How.  464-5 ; Bunn  v.  Gorgus,  41  Penn. 
St.  R.  441 ; Weaver  v.  Mailot,  15  La.  395 ; Billmeyer  v.  Evans,  40 
Penn.  St.  It.  324.  The  legislature  of  a State  has  a right  to  bind 
the  State  by  contract,  so  as  to  exempt  persons,  corporations,  and 
things  from  taxation.  The  Richmond  R.  R.  Co.  v.  The  Louisa  R. 
R.  Co.  13  How.  11 ; Gordon  v.  The  Appeal  Tax  Court,  3 How.  33; 
New  Jersey  v.  Wilson,  7 Cr.  164;  Jefferson  Branch  Bank  v. 
Skelley,  1 Black,  447-8.  But  the  intention  to  exempt  must  be  clear. 
Id. ; Gilman  v.  The  City  of  Sheboygan,  2 Black,  513.  And  the 
privilegia  favorabilia  will  be  narrowly  construed.  Rector,  &c.  v. 
The  County  of  Philadelphia,  24  How.  302. 

Do  laws  161.  Laws  which  Affect  the  Remedy  only. — Where  there 
which  affect  ig  no  direct  constitutional  prohibition,  a State  may  pass  retrospect- 
toe  remedy  *V0  iaws>  as  in  their  operation  may  affect  suits  pending,  and 
impair  ? give  to  a party  a remedy  which  he  did  not  previously  possess,  or 
modify  an  existing  remedy,  or  remove  an  impediment  in  the  way 
402.  of  legal  proceedings.  (Hepburn  v.  Curts,  7 Watts,  300  ; Shenly  v. 
Commonwealth,  36  Penn.  State,  57;  Foster  v.  Essex  Bank,  16 
Mass.  245;  Richv.  Flanders,  39  N.  H.  325.)  Freeborn  v.  Smith, 
2 Wall.  175.  The  legislature  may  pass  private  acts  authorizing  sales 
by  administrators,  in  a different  manner  from  the  general  statutes 
regulating  the  subject.  (Mason  v.  Wait,  4 Scam.  134.)  Florentine 
v.  Barton,  2 Wall.  216-7.  Judicial  sales  of  lands  to  pay  the  debts 
of  a decedent’s  estate,  are  in  the  nature  of  a proceeding  in  remy 
and  the  purchaser  need  only  look  to  the  order  of  sale.  The  State 
court  is  presumed  to  have  correctly  settled  every  judicial  question, 
including  the  constitutionality  of  the  act  of  assembly.  (Grignon 
v.  Astor,  3 How.  319.)  Florentine  v.  Barton,  2 Wall.  216.  The 
inhibition  against  impairing  the  obligation  of  contracts  is  upon  the 
States  not  the  United  States.  (Evans  v.  Eaton,  1 Pet.  C.  C.  Rep. 
322;  In  the  matter  of  Klein,  1 How.  277 ; Kunzler  v.  Kohaus,  5 
Hill,  325.)  Metropolitan  Bank  v.  Yan  Dyck,  27  N.  Y.  453. 

The  cases  which  draw  the  distinction  between  ex  'post  facto 
laws ; the  laws  impairing  the  obligation  of  contracts ; retrospective 
laws,  and  laws  which  only  affect  the  remedy,  will  be  found  fully 
collected  in  Paschal’s  Annotated  Digest,  notes  61,  157,  168,  410, 
1107-1109.  And  fqr  a very  learned  and  exhaustive  treatise  upon 
the  whole  subject,  see  Story’s  Const.  Book  III.  ch.  XXXIV., 
§ 1374-1400. 

What  of  The  States  may  pass  laws  validating  contracts  which  were 
contracts ? usurious  and  void  when  made.  Welsh  v.  Wadsworth,  30  Conn. 

149.  But  not  to  operate  unreasonably  and  unjustly  upon  antece- 
dent rights.  Id.  And  may  change  the  interest  laws  relieving 
from  penalties.  Wood  v.  Kennedy,  19  Ind.  68.  And  the  laws  of 
CoetB?  costs  as  to  pending  suits.  Taylor  v.  Keeler,  30  Conn.  324.  But 
not  the  compensation  of  rights  already  vested.  State  v.  Auditor, 


01. 1,  2.] 


INHIBITIONS,  162. 


161 


33  Miss.  287.  And  providing  for  the  validity  of  marriages.  *02. 
Goshen  v.  Richman,  4 Allen  (Mass.),  458.  And  changing  the 
presumptions  in  favor  of  tax  sales.  Hickor  v.  Tallman,  38  Barb.  Evidence  ? 
N.  Y.  608.  And  curing  irregularities  in  conveyances,  as  to  the 
parties  and  subsequent  purchasers ; but  not  to  disturb  vested  Convey- 
rights.  Thompson  v.  Morgan,  6 Minn.  292.  ancos? 

[2.1  No  State  shall,  without  the  consent  of  tbewhatar© 

. . , . . the  inhibi- 

(Jongress,  lay  any  imposts  or  duties  on  imports  or  ex-  tions  upon 

1 ^ , i i , ^ „ the  States 

ports,  except  what  may  be  absolutely  necessary  for  without  the 
executing  its  inspection  laws;  and  the  net  produce  of  confess  ? 
all  duties  and  imposts,  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ; and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.  [3.1  No  State  4°3-406. 
shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships-of-war  in  time  of 
peace,  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

162.  For  the  definitions  of  “imposts’’  and  “duties”  see  75-77. 
notes  75  to  77.  For  a history  of  this  clause,  see  journals  of  the 
Convention,  222,  227,  275,  301,  303,  318,  377  and  378. 

“An  impost  or  duty  on  imports,”  is  a custom  or  tax  levied  What  is  a 
on  articles  brought  into  the  country.  Brown  v.  Maryland,  12  duty  on 
Wheat.  446,  447.  Imports  are  things  imported — the  articles  them-  lmPort8? 
selves  which  are  brought  into  the  country.  It  is  not  merely  a duty 
on  the  act  of  importation,  but  it  is  a duty  on  the  thing  imported.  138. 

It  is  not  confined  to  a duty  levied  while  the  article  is  entering  274. 

the  country,  but  extends  to  a duty  levied  after  it  has  entered  the 
country.  (Brown  v.  Maryland,  12  Wheat.  419,  446,  447.)  Story’s  86-89. 
Const.  § 1019;  see  Gibbons  v.  Ogden,  9 Wheat.  199-201.  The 
power  to  impose  duties  on  imports  is  exclusive  in  Congress.  403. 
Pervear  v.  The  Commonwealth,  5 Wall.  479.  A charge  on  vessels 
by  the  State  for  the  benefit  of  the  master  and  warders  of  the  port 
is  unconstitutional.  The  Southern  Steamship  Company  v.  The 
Master,  &c.  6 Wall. 

It  was  really  intended  to  make  the  vast  inter-state  commerce  as 
nearly  free  as  possible.  The  ordinance  of  the  city  of  Houston 
requiring  wharfage  duties  of  steamboats,  does  not  infringe  this 
provision  of  the  Constitution.  Sterrett  v.  Houston,  14  Tex.  166. 

“Except  what  may  be  absolutely  necessary.” — This  is  the  Necessary* 
strongest  qualification  of  “ necessary  ” See  McCulloch  v.  Mary- 
land, 4 Wheat.  316 ; Kent’s  Com.  398-401 ; Story’s  Const.  § 1033. 


162 


TONNAGE — EXECUTIVE,  163,  164.  [Art.  II.,  Sec.  1, 


Inspection  ? 
404* 


What  is 
tonnage  ? 

407. 


Define 
troops  ? 


122, 123. 


Define 
agreement 
or  compact  ? 

152. 

178. 

223-225. 


Where  is 
the  execu- 
tive power? 


“Inspection.” — The  tax  or  duty  of  inspection,  is  frequently,  if 
not  always,  paid  while  the  article  is  in  the  bosom  of  the  country. 
Brown  v.  Maryland,  12  Wheat.  420. 

The  exception  was  made  because  the  tax  would  otherwise  have 
been  within  the  prohibition.  Id.  See  the  subject  discussed.  Id. 

The  State  has  no  right  to  tax  the  goods  imported,  in  the  hands 
of  the  importer.  Id.  This  language  means  the  same  thing  as  the 
inhibition  on  the  United  States  against  laying  a tax  on  articles 
exported  from  any  State.  Id.  Story’s  Const.  § 1030.  Upon  the 
same  principles,  or  their  analogies,  it  was  held  that  the  State  of 
Maryland  had  not  the  constitutional  right  to  tax  the  branch  of  the 
United  States  bank  located  in  Maryland.  McCulloch  v.  Maryland, 
1 Wheat.  316;  Kent’s  Com.  398,  401^;  Story’s  Const.  § 1033-1053. 
The  sale  of  liquors  within  a State  is  subject  exclusively  to  State 
control.  (License  cases,  5 Wall.  462.)  Pervear  v.  The  Common- 
wealth, 5 Wall.  479. 

163.  “Lay  any  Duty  of  Tonnage,  &c.” — This  form  of  expres- 
sion occurs  nowhere  else  in  the  Constitution.  Tonnage  \tonnagium\ 
is  a custom  or  impost  upon  wines  or  other  merchandise  exported 
or  imported,  according  to  a certain  rate  per  ton.  (Spelman ; 
Cowell.)  Burrill’s  Law  Die. : A duty  or  impost  upon  ships  esti- 
mated per  toD.  Webster’s  Die.,  Tonnage. 

164.  “Keep  Troops  or  Ships-of-War  in  time  of  Peace.” — 
This  means  organized  troops,  or  armies,  and  a navy ; because  these 
are  national  powers.  See  Articles  of  Confederation,  ante , p.  12, 
Art.  VI. ; Story’s  Const.  § 1401-1409.  In  certain  emergencies, 
States  may  raise  troops  to  repel  invasions  or  suppress  insurrections. 
Story’s  Const.  § 1404.  Luther  v.  Borden,  7 How.  1. 

“ Agreement  or  Compact,”  properly  applies  to  such  as  regarded 
what  might  be  deemed  mere  private  rights  of  sovereignty,  such 
as  boundaries,  land,  and  other  internal  regulations  for  the  mutual 
comfort  and  convenience  of  States  bordering  on  each  other.  Story’s 
Const.  § 1403.  These  words  are  used  in  their  broadest  sense ; they 
were  intended  to  cut  off  all  negotiation  and  intercourse  between  the 
State  authorities  and  foreign  nations.  Holmes  v.  Jennison,  14  Pet. 
572,  574.  And,  therefore,  no  State  can,  without  the  consent  of 
Congress,  enter  into  any  agreement  or  compact,  to  deliver  up  fugi- 
tives from  justice  from  a foreign  State,  who  may  be  found  within 
its  limits.  Id.;  3 Opin.  661.  This  prohibition  is  political  in  its 
character,  and  has  no  reference  to  a mere  matter  of  contract,  or  to 
the  grant  of  a franchise  which  in  nowise  conflicts  with  the  powers 
delegated  to  the  general  government  by  the  States.  Union  Branch 
R.  R.  Co.  v.  East  Tennessee  & Georgia  R.  R.  Co.  14  Ga.  327.  A 
compact  entered  into  between  two  States,  with  the  assent  of  Con- 
gress, is  binding  on  those  States  and  the  citizens  of  each.  Fleeger 
v.  Pool,  1 McLean,  185.  See  Story’s  Const.  § 1403;  1 Tucker’s 
Black.  Com.  Apo.  301. 

Article  II. 

Sec.  1. — [l.J  The  executive  power  shall  be  vested 
in  a President  of  the  United  States  of  America.  He 
shall  hold  his  office  during  the  term  of  four  years,  and 


01.  1.] 


PRESIDENTS,  165,  166. 


163 


together  with  the  Vice-President,  chosen  for  the  same  The  term 
term,  he  elected  as  follows.  of  office? 

165,  The  Executive  Power. — The  object  of  this  department  is  What  it  the 
to  insure  the  execution  of  the  laws.  1 Kent’s  Com.  285.  With  object  ? 
energy  in  the  executive  and  safety  to  the  people.  Story’s  Const. 

§ 1417.  The  ingredients  for  energy,  are  unity,  duration,  adequate 
provisions  for  its  support ; and,  for  safety,  a due  dependence  on 
the  people,  and  a due  responsibility  to  the  people.  (Federalist,  No. 

70  ; 1 Kent’s  Com.  Lect.  13,  pp.  253,  254.)  Story’s  Const.  § 1418. 

The  powers  of  the  President  are  not  executive  only.  The  veto  Define  the 
power  and  the  appointing  power  are  not  strictly  executive  powers ; executive 
no  more  so  than  when  exercised  by  Congress  or  the  States.  Bates  P0^1,  ? • 
on  Habeas  Corpus , 5th  July,  1861.  He  is  a civil  magistrate,  to  67,  199. 
whom  all  military  officers  are  subordinate.  Id.  In  calling  out  the  408. 
militia  to  see  the  laws  faithfully  executed,  he  acts  as  a civil 
magistrate  upon  the  same  principle  that  a court  calls  out  the 
posse.  Id.  In  times  of  great  danger,  when  the  very  existence  of 
the  nation  is  assailed,  the  President  may  order  military  arrests.  Id. 

We  must  not  forget  that  this  power  of  appointment  to  office  is 
essentially  an  executive  function.  It  belongs  essentially  to  the 
executive  department  rather  than  to  the  legislative  or  judicial.  If 
no  provision  on  the  subject  had  been  made  by  the  Constitution,  it 
would  have  been  held  appurtenant  to  the  President  as  the  head  of 
the  executive  department  specially  charged  with  the  execution  of 
the  laws.  Stanbery  on  the  executive  power.  See  Confederation, 
ante  Article  VI.  p.  14;  2 Elliot’s  Debates,  358;  Federalist,  Nos. 

67,  70,  1 Kent’s  Com.  271-303;  Journal  of  Convention,  68,  89, 

96,  136,  211,222,  324,  332,  333;  2 Pitk.’s  Hist.  252;  2 Curtis’ 

Hist,  of  Const,  ch.  III.,  pp.  56-60;  Story’s  Const,  ch.  XXXVI., 

§ 1440-1448,  and  voluminous  notes  of  the  3d  edition. 

A proposition  was  made  in  the  Convention  for  an  executive 
with  a plurality  of  persons.  Journal  of  Convention,  124.  Mr. 

Calhoun  advocated  a dual  executive  at  a later  day.  See  Cal- 
houn’s Essay  on  the  Const. ; Story’s  Const.  § 1426-1429. 

166.  The  following  is  the  list  of  Presidents  who  have  been  who  have 

been  the 
presidents  f 

CE.  * 

4 March,  1793.  When  and 
“ ;;  lm.  how  long? 


179. 

174. 


409. 


chosen  under  this  Constitution : — 


NAME. 

George  Washington. 
George  Washington. 
John  Adams. 

Thomas  Jefferson. 
Thomas  Jefferson. 
James  Madison. 
James  Madison. 
James  Monroe. 

James  Monroe. 

John  Quincy  Adams. 
Andrew  Jackson. 
Andrew  Jackson. 
Martin  Van  Buren. 
William  H.  Harrison. 
John  Tyler. 

James  K.  Polk. 
Zachary  Taylor. 
Millard  Fillmore. 
Franklin  Pierce. 
James  Buchanan. 
Abraham  Lincoln. 
Abraham  Lincoln. 
Andrew  Johnson. 

D S.  Grant. 

U.  S.  Grant 


NATIVITY. 

RESIDENCE. 

SKRt 

Virginia. 

Virginia. 

4 March,  1789, 

a 

u 

it 

“ 1793, 

Massachusetts. 

Massachusetts. 

it 

“ 1797, 

Virginia. 

Virginia. 

it 

“ 1801, 

u 

it 

(i 

“ 1805, 

(C 

« 

it 

“ 1809, 

a 

M 

t c 

“ 1813, 

it 

l( 

it 

“ 1817, 

ti 

K 

it 

“ 1821, 

Massachusetts. 

Massachusetts. 

tc 

“ 1825, 

96uth  Carolina. 

Tennessee. 

it 

“ 1829, 

u u 

i< 

it 

“ 1833, 

New  York. 

New  York. 

it 

“ 1837, 

Virginia. 

Ohio. 

it 

“ 1841, 

« 

Virginia. 

6 

April,  1841, 

North  Carolina. 

Tennessee. 

4 March,  1845, 

Virginia. 

Louisiana. 

it 

“ 1849, 

New  York. 

New  York. 

10 

July,  1850, 

New  Hampshire. 

New  Hampshire. 

4 March,  1853, 

Pennsylvania,  q 

Pennsylvania. 

“ 1857, 

Kentucky. 

Illinois. 

U 

“ 1861, 

«< 

<< 

it 

“ 1865, 

North  Carolina. 

Tennessee. 

15  April,  1865, 

Illinois. 

Washington,  D.  C, 

4 March.  1869, 

“ 

“ 

4 March,  1873, 

1805. 
1809. 
1813. 
1817. 
1821. 
lsas* 
1829. 
1833. 
1837. 
1841. 
1841. 

4 March,  1845. 

1849. 

1850. 
1853. 
1857. 

“ “ 1861. 
“ “ 1865. 

14  April.  1865. 
4 March,  1869. 
4 Mareh,  1873. 


4 April, 


9 Jnly, 

4 March, 


164 


How  are 
electors 
appointed  ? 


Disqualifi- 

cations? 


Define 
electors  ? 

409a. 


16-17. 


How  many 
electors  ? 

23. 

Necessary 
to  a choice  ? 


46. 

175-185. 


How  is  the 
President 
elected  ? 

167. 


How  are  the 
votes  certi- 
fied? 


ELECTORS,  167.  [Art.  II.,  Arndt.  XII.,  Sec.  1, 

[2.]  Each  State  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a number  of  electors 
equal  to  the  whole  number  of  senators  and  repre- 
sentatives to  which  the  State  may  be  entitled  in  the 
Congress ; but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 

167.  “Electors,”  as  here  used,  mean  the  persons  chosen  to 
cast  the  votes  in  the  first  instance  for  President  and  Vice-Presi- 
dent. All  the  legislatures  have,  long  since,  directed  that  they  shall 
be  “ appointed”  that  is,  chosen  by  the  people,  except  South  Caro- 
lina, which  appointed  by  the  legislature.  See  Story’s  Const. 
§ 1472;  3 Elliot’s  Debates,  100,  101. 

Thus  the  “ electors  ” for  members  of  Congress,  indirectly  choose 
the  “ electors  ” for  President,  Vice-President,  and  Senators. 

But  the  House  of  Representatives  in  one  contingency,  and  the 
Senate  in  another,  may  choose  the  President.  Therefore,  however 
chosen,  it  results  that  the  President  is,  indirectly,  chosen  by  the 
same  electors  who  choose  the  popular  branch  of  the  State  legisla- 
ture. 

As  there  are  now  thirty-seven  States,  the  senators  represent 
74  electoral  votes  ; add  to  these  243  representatives,  and  the  elec- 
toral voto  of  1868  will  be  317  ; necessary  to  a choice  159.  That  is 
if  no  new  State  be  added  by  the  second  session  of  the  fortieth 
Congress ; and  if  all  the  non-reconstructed  States  be  allowed  to  vote. 
The  number  of  electoral  votes  to  which  Virginia,  North  and  South 
Carolina,  Georgia,  Plorida,  Alabama,  Mississippi,  Louisiana,  Arkan- 
sas and  Texas,  would  be  entitled,  under  the  apportionment  are  70. 

The  question  as  to  whether  these  States  shall  vote,  and  who  shall 
choose  the  electors,  is  now  one  of  the  exciting  issues  of  the  day. 
See  Story’s  Const.  § 1454-1488. 

The  attempted  independence  of  the  electors  has  failed.  Story’s 
Const.  § 1463;  Rawle’s  Const,  ch.  5,  p.  58. 

[Article  XII. — Amendment.] 

[1].  The  electors  shall  meet  in  their  respective 
States,  and  vote  by  ballot  for  President  and  Vice-Presi- 
dent, one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves  ; they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and  in 
distinct  ballots  the  person  voted  for  as  Vice-President ; 
and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  President,  and  of  all  persons  voted  for  as  Vice- 
President,  and  the  number  of  votes  for  each,  which 


Cl.  1,  2.] 


ELECTORS,  168. 


165 


list  they  shall  sign  and  certify,  and  transmit  sealed  to  Returns, 
the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate;  the  Presi- 
dent .of  the  Senate  shall,  in  the  presence  of  the  Senate 
and  House  of  Representatives,  open  all  the  certificates,  And 
and  the  votes  shall  then  be  counted  ; the  person  hav- coun  e 
ing  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a majority  of  the 
whole  number  of  electors  appointed ; and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  if  no 
highest  numbers,  not  exceeding  three,  on  the  list  of 
those  voted  for  as  President,  the  House  of  Representa- 
tives shall  choose  immediately  by  ballot  the  President. 

But  in  choosing  the  President,  the  votes  shall  be  taken  How  do  the 
by  States,  the  representation  from  each  State  having  Sutes  vote  ? 
one  vote ; a quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  States,  and 
a majority  of  all  the  States  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  if  the 
not  choose  a President,  whenever  the  right  of  choice  refuse  to 
shall  devolve  upon  them,  before  the  fourth  day  0f  choo8e? 
March  next  following,  then  the  Vice-President  shall  U2. 
act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President. 

16§.  The  original  read  as  follows: — 

“ [3.]  The  electors  shall  meet  in  their  respective  States,  and  vote  What  was 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in-  the  repealed 
habitant  of  the  same  State  with  themselves.  And  they  shall 6ec  lon  ? 
make  a list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each ; which  list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the  P.32. 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  shall  be 
the  President,  if  such  number  be  a majority  of  the  whole  number 
of  electors  appointed ; and  if  there  be  more  than  one  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the  House 
of  Representatives  shall  immediately  choose  by  ballot  one  of  them 
for  President ; and  if  no  persdn  have  a majority,  then  from  the  five 
highest  on  the  list  the  said  House  shall  in  like  manner  choose  the 


166 


VICE-P.,  168a,  1685.  [Arndt.  Art.  XII.,  Art.  II.,  Sec.  1, 


Choice. 


When 
do  the 
electors 
meet  and 
vote? 


President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having  one 
vote;  a quorum  for  this  purpose  shall  consist  of  a member  or 
members  from  two-thirds  of  the  States,  and  a majority  of  all  the 
States  shall  be  necessary  to  a choice.  In  every  case,  after  the 
choice  of  the  President,  the  person  having  the  greatest  number  of 
votes  of  the  electors  shall  be  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate 
shall  choose  from  them  by  ballot  the  Vice-President.” 

The  electors  shall  meet  on  the  first  Wednesday  in  December,  by 
act  1st  March,  1192.  1 Stat.  239.  Before  the  first  Wednesday 

in  January,  by  the  same  act.  On  the  second  Wednesday  in  Feb- 
ruary, by  the  same  act.  In  the  election  of  1864,  the  votes  of 
Louisiana,  Arkansas,  and  Tennessee  for  President  were  given,  but 
n,ot  counted.  Virginia,  North  Carolina,  South  Carolina,  Georgia, 
Florida,  Alabama,  Mississippi,  and  Texas,  did  not  vote  in  this 
election.  On  a motion  to  discharge  a defendant  arrested  upon  a 
capias  ad  respondendum, , by  a marshal  appointed  by  the  President 
de  facto , of  the  United  States,  the  court  will  not  decide  the  question 
whether  he  has  been  duly  elected  to  that  office.  Peyton  v.  Brent, 
3 Cr.  C.  C.  424. 

If  ever  the  tranquillity  of  this  nation  is  to  be  disturbed  and  its 
liberties  endangered  by  a struggle  for  power  it  will  be  upon  the 
subject  of  the  choice  of  a President.  1 Kent’s  Com.  274. 

If  there  be  four  candidates  and  two  of  them  have  an  equal  num- 
ber of  votes,  the  Constitution  makes  no  provision.  Story’s  Const. 
§ 1471. 


If  the  [2.]  The  person  having  the  greatest  number  of 

not° choose  votes  as  Vice-President  shall  be  the  Vice-President,  if 
President?  such  number  be  a majority  of  the  whole  number  of 
electors  appointed ; and  if  no  person  have  a majority, 
12th  Amend,  then  from  the  two  highest  numbers  on  the  list  the 
4io.  Senate  shall  choose  the  Vice-President : a quorum  for 
the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  Senators,  and  a majority  of  the  whole  num- 
ber shall  be  necessary  to  a choice. 


1 68a,  Richard  M.  Johnson  was  elected  Vice-President  under 
this  clause  in  1837.  See  note  37. 

What  are  [3.]  But  no  person  constitutionally  ineligible  to  the 
cations  of  office  of  President  shall  be  eligible  to  that  of  Vice* 
dent?lre&1  President  of  the  United  States. 

12th  Amend. 

1686,  For  commentaries  on  this  amendment  see  1 Kent’s 
Com.  260,  262 ; Rawle  on  the  Const,  eh.  5,  pp.  54,  55 ; Story’s 
Const.  § 1468-1473. 


01.  2-4.] 


PKESIDENT,  168c,  169. 


167 


[3.]  The  Congress  may  determine  the  time  of  choos-  whatis  the 
ing  the  electors,  and  the  day  on  which  they  shall  give  conges! 
their  votes ; which  day  shall  be  the  same  throughout  of 6 

the  United  States.  eleotion? 

168c.  On  the  Tuesday  next  after  the  first  Monday  in  Novem-  When  to  be 
ber;  by  act  23d  January,  1845.  5 Stat.  *721.  held? 

On  the  first  Wednesday  in  December;  by  act  1st  March,  1792. 

1 Stat.  239.  All  the  States  now  choose  the  electors  by  the  people. 

See  Story’s  Const.  § 147  5,  147  6. 

[4.]  No  person  except  a natural  born  citizen,  or  awhatare 
citizen  of  the  United  States  at  the  time  of  the  adoption  cations^' 
of  this  Constitution,  shall  be  eligible  to  the  office  0f  Prebldent’ 
President ; neither  shall  any  person  be  eligible  to  that  is,  19, 35. 
office  wTho  shall  not  have  attained  to  the  age  of  thirty- 220-222. 
live  years,  and  been  fourteen  years  a resident  within 
the  United  States. 

160.  “ A Natural  Born  Citizen.” — Not  made  by  law  or  other-  Who  are 
wise,  but  lorn.  And  this  class  is  the  large  majority;  in  fact  the  eligible ? 
mass  of  our  citizens ; all  others  are  exceptions  specially  provided 
for  by  law.  As  they  become  citizens,  by  birth , so  they  remain 
citizens  during  their  natural  lives,  unless,  by  their  own  voluntary  274. 
act,  they  expatriate  themselves  and  become  citizens  or  subjects  of 
another  nation.  For  we  have  no  law  (as  the  French  have)  to 
decitizenize  a citizen  who  has  become  such  either  by  the  natural 
process  of  birth  or  the  legal  process  of  adoption.  Attorney- 
General  Bates  on  Citizenship,  10  Op.  382. 

The  Constitution  does  not  make  the  citizens  (it  is,  in  fact,  made  Does  the  _ 
by  them).  It  only  intends  and  recognizes  such  of  them  as  are  ^ke^the^11 
natural,  home-born,  and  provides  for  the  naturalization  of  such  of  citizens? 
them  as  are  alien,  foreign-born,  making  the  latter,  as  far  as  nature 
will  allow,  like  the  former.  Id.  We  have  no  middle  class  or  93. 
denizens.  (1  Sharswood’s  Bl.  Com.  374.)  Id.  9.  But  Attorney- 
General  Legare  thought  there  might  be.  (4  Opin.  147.)  Id.  The 
example  of  a Boman  citizen  and  St.  Paul’s  case  and  claim  thereto 
cited.  Id.  Paul’s  is  a leading  case  of  the  11  Jus  Romanum it  is 
analagous  to  our  own  ; it  establishes  the  great  protective  rights  of 
the  citizen,  but,  like  our  own  national  Constitution,  it  is  silent  279. 
about  his  powers.  Id.  12. 

“ Natural  born  citizen  ” recognizes  and  reaffirms  the  universal  Define 
principle  common  to  all  nations,  and  as  old  as  political  society,  that  natural 
the  people  born  in  a country  do  constitute  the  nation,  and,  as  indi-  born220. 
viduals,  are  natural  members  of  the  body  politic.  Bates  on  Citizen- 
ship, 10  Op.  382. 

Every  person  born  in  the  country  is,  at  the  moment  of  birth, 
prima  facie  a citizen.  Id. 

Nativity  furnishes  the  rule,  both  of  duty  and  of  right,  as  between  nativity68 
the  individual  and  the  government.  (2  Kent’s  Com.  Part  4,  Lect.  imply  ? 


168 


PRESIDENT,  170. 


[Art.  II.,  Sec.  1, 


Who  be- 
sides natu- 
ral born  are 
eligible  ? 

220. 


274. 


85, 19. 


220. 


46. 


262-263. 


How  is  the 
Constitn- 
tion  to  be 
interpreted 


25;  1 Bl.  Com.  ch.  10,  p.  365;  7 Coke’s  Rep.  and  (Calvin’s  Case,  11 
State  Trials,  7 0)  Doe  v.  Jones,  4 Term.  300  ; Shanks  v.  Dupont,  3 Pet. 
246 ; Horace  Binney,  2 Am.  Law  Reporter,  193.)  Bates  on  Citizen- 
ship, p.  12. 

170.  “Or  a Citizen  op  the  United  States  at  the  time  op 
the  Adoption  of  this  Constitution.” — The  declaration  of  inde- 
pendence of  1776,  invested  all  those  persons  with  the  privilege 
of  citizenship  who  resided  in  the  country  at  the  time,  and  who 
adhered  to  the  interests  of  the  colonies.  (Ingliss  v.  The  Sailors’ 
Snug  Harbor,  3 Pet.  99,  121.)  United  States  v.  Ritchie,  17  How. 
540 ; Paschal’s  Annotated  Digest,  note  350,  p.  209. 

There  can  be  few  of  the  class  of  the  foreign  born,  such  as  Alex- 
ander Hamilton,  who  are  now  surviving,  who  are  eligible  to  the 
presidency.  Considering  the  ages  of  all  such,  no  person  of  foreign 
birth  can  now  ever  be  President  of  the  United  States  under  this 
Constitution.  (See  Story’s  Const.  § 1479;  Journals  of  Convention, 
267,  325,  361.)  Still,  in  this  case,  as  in  the  qualifications  of  sen- 
ators and  representatives  in  Congress,  the  question  is  not  so 
clear  as  to  who  are  “natural  born  citizens  of  the  United  States.” 
Are  the  ante-nati  of  the  Republic  of  Texas,  for  example,  “natural 
bom  citizens  of  the  United  States  ?”  They  were  born  upon  what 
is  now  soil  of  the  United  States  ; but  they  were  not  “ citizens  at 
the  moment  of  their  births.”  About  the  post  nati  there  can  be  no 
doubt ; but,  according  to  the  principles  of  Calvin’s  case,  which  was 
so  learnedly  and  quaintly  discussed,  none  of  the  ante-nati  of  our 
acquired  territories  have  now  the  full  status  of  citizenship;  and 
certainly  they  are  no  other  than  adopted  or  naturalized  citizens,  in 
contradistinction  to  “ natural  born  citizens.”  See  Calvin’s  Case,  11 
State  Trials,  7 0 et  seq. 

And  here,  again,  the  language  of  this  clause  has  to  be  con- 
strued in  connection  with  other  clauses  and  the  general  under- 
standing of  mankind.  For  there  is  nothing  in  this  clause  to  indi- 
cate sex  unless  it  be  the  word  “ President.”  Our  advocates  for 
equal  “ Woman's  Rights' ’ might  consider  this  a very  narrow  defi- 
nition; and  they  might  even  urge  that  the  pronoun  “ he,”  in  other 
clauses,  does  not  protect  woman  from  the  severest  criminal  statutes ; 
nor  would  it  deprive  woman  of  the  guaranties  accorded  to  “ him  ” 
and  “ himself,”  standing  for  the  antecedent  of  “ person  ” in  the  Yth 
and  YIth  amendments. 

The  claims  of  males  to  be  alone  entitled  to  be  “ Senators  ” and 
“ Representatives ,”  is  believed  to  rest  alone  upon  the  masculinity  of 
, the  word,  the  single  “/ie,”  and  the  common  sense  and  under- 
’ standing  of  men.  These  remarks  are  not  made  in  any  speculative 
or  hypercritical  spirit,  but  to  impress  upon  the  reader  the  necessity 
of  applying  the  same  common-sense  tests  to  this  Constitution  as  to 
all  other  instruments.  That  is,  not  to  construe  it  alone  by  the  very 
technicalities  of  the  words  in  a single  member  of  a sentence ; but 
to  apply  to  it  the  same  rules  of  interpretation  which  we  apply  to 
all  other  instruments,  laws,  and  statutes.  That  is  to  construe  it  by 
its  language,  nature,  reason,  and%pirit,  objects  and  intention,  and 
the  interpretations  of  contemporaneous  history,  having  an  eye  to 


Cl.  4,  5.] 


PBESIDENT,  171,  172. 


169 


the  old  law,  the  mischief  and  the  remedy.  See  Story’s  Const, 
chapters  three,  four,  and  five,  and  voluminous  references. 

171.  “Who  shall  not  have  attained  the  age  of  thirty  What  does 
years.” — This  is  a limitation  upon  the  people  themselves.  If  all  the  age  fix? 
of  the  nation  speak  with  one  united  voice,  they  cannot  constitution- 
ally make  any  man  President  who  happens  to  be  under  thirty- 

five.  Bates  on  Citizenship,  p.  18. 

“Fourteen  years’  residence.” — By  “residence”  is  to  be  under- 
stood, not  an  absolute  inhabitancy  within  the  United  States  during 
the  whole  period;  but  such  an  inhabitancy  as  includes  a per- 
manent domicile  in  the  United  States.  Story’s  Const.  § 1479. 

[5.]  In  case  of  the  removal  of  the  President  from  if  there  be  a 
office,  or  of  his  death,  resignation,  or  inability  to  dis-  theap?fsim 
charge  the  powers  and  duties  of  the  said  office,  the  then  be^h° 
same  shall  devolve  on  the  Vice-President,  and  the  prudent? 
Congress  may  by  law  provide  for  the  case  of  removal,  36. 
death,  resignation,  or  inability,  both  of  the  President  4ii. 
and  Vice-President,  declaring  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly 
until  the  disability  be  removed,  or  a President  shall  be 
elected. 

172.  The  following  is  the  act  of  Congress  for  filling  vacancies : Act  of 

“ Sec.  8.  In  case  of  removal,  death,  resignation,  or  inability  both  March  1, 
of  the  President  and  Vice-President  of  the  United  States,  the  ^q2, 1 8t* 
President  of  the  Senate  pro  tempore,  and  in  case  there  shall  be  no  38,  26. 
President  of  the  Senate,  then  the  Speaker  of  the  House  of  Repre-  if  in  the 
sentatives,  for  the  time  being,  shall  act  as  President  of  the  Vice-Presi- 
United  States  until  the  disability  be  removed  or  a President  shall  dency’  ? 
be  elected. 

“ 9.  Whenever  the  offices  of  the  President  and  Vice-President  When  shall 
shall  both  become  vacant,  the  Secretary  of  State  shall  forthwith  there  he  a 
cause  a notification  thereof  to  be  made. to  the  executive  of  e^er7  election ? 
State,  and  shall  also  cause  the  same  to  be  published  in  at  least  one 
of  the  newspapers  printed  in  each  State,  specifying  that  electors  4il, 412. 
of  the  President  of  the  United  States  shall  be  appointed  or  chosen 
in  the  several  States  within  thirty-four  days  preceding  the  first 
Wednesday  in  December  then  next  ensuing:  Provided , there  shall 
be  the  space  of  two  months  between  the  date  of  such  notification 
and  the  said  first  Wednesday  in  December ; and  if  the  term  for 
which  the  President  and  Vice-President  last  in  office  were  elected, 
shall  not  expire  on  the  third  day  of  March  next  ensuing,  then  the 
Secretary  of  State  shall  specify  in  the  notification  that  the  electors 
shall  be  appointed  or  chosen  within  thirty-four  days  preceding  the 
first  Wednesday  in  December  in  the  year  next  ensuing ; within 
which  time  the  electors  shall  accordingly  be  appointed  or  chosen, 
and  the  electors  shall  meet  and  give  their  votes  on  the  said  first 

16 


170 


PRESIDENT,  172,  173,  174,  [Art.  II.,  Sec.  1,  2, 


Time. 


Suppose 
there  is  no 
election? 


What  Vice- 
Presidents 
have  be- 
come Presi- 
dents ? 


What  of  the 
President’s 
compensa- 
tion ? 


413. 


What  is  the 
amount? 


What  is  the 
President’ s 
oath  ? 

242. 

414. 


What  does 
to  faithfully 
execute 
embrace  ? 


Wednesday  in  December,  and  the  proceedings  and  duties  of  the 
said  electors  and  others  shall  be  pursuant  to  the  directions  pre- 
scribed in  this  act.”  Act  of  1 March,  1792,  § 8,  9.  1 Stat.  239. 

Brightly’ s Dig.  253,  254.  The  Constitution  does  not  provide  for 
a vacancy  in  case  of  non-election.  Therefore,  the  constitutionality 
of  some  parts  of  this  act  has  been  doubted.  Story’s  Const.  § 1480- 
1484;  Rawle’s  Const,  ch.  5,  p.  57  ; 1 Tucker’s  Black.  App.  320; 
2 Elliot’s  Debates,  359,  360. 

William  Henry  Harrison  having  died  on  the  4th  day  of  April, 
1841,  John  Tyler  took  the  oath  of  office  as  President,  on  the  6th 
day  of  April,  1841 ; Zachary  Taylor  died  on  the  9th  day  of  July, 
1850,  and  the  next  day  Millard  Fillmore  took  the  presidential 
oath;  Abraham  Lincoln  was  assassinated  by  John  Wilkes  Booth, 
on  the  14th  day  of  April,  1865,  and,  on  the  15th,  Andrew  Johnson 
was  inaugurated  President. 

[6.]  The  President  shall,  at  stated  times,  receive 
for  his  services  a compensation,  which  shall  neither  be 
increased  nor  diminished  during  the  period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the 
United  States  or  any  of  them. 

173.  The  President’s  salary  was  fixed  at  twenty-five  thousand 

dollars  per  annum,  by  the  act  of  18th  Feb.,  1793.  1 St.  318,  Bright- 

ly’s  Digest  818. 

The  government  provides  and  furnishes  a mansion  for  his  use. 
For  the  wisdom  of  this  independence  in  regard  to  salary,  see  1 
Kent’s  Com.  263  ; Federalist,  No.  73  ; Story’s  Const.  § I486. 

[7.]  Before  he  enter  on  the  execution  of  his  office, 
he  shall  take  the  following  oath  or  affirmation  : — 

“I  do  solemnly  swear  (or  affirm),  that  I will  faith- 
fully execute  the  office  of  President  of  the  United 
States,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United 
States.” 

174.  The  President  is  the  only  officer  required  to  take  this 
oath.  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  Rep.  408. 

This  oath  embraces  all  the  laws,  Constitution,  treaties,  and  stat- 
utes. And  it  constitutes  the  President,  above  all  other  officers, 
the  guardian,  protector,  and  defender  of  the  Constitution.  Bates 
on  Habeas  Corpus , 5th  July,  1861.  See  Stanbery  on  vacancies. 
The  acts  of  1795  and  1807,  came  in  aid  of  these  duties.  Id. 

“Faithfully  to  execute  the  office  of  President.’’ — This 
embraces  the  general  office  of  the  executive,  and  also  the  official 
powers  not  in  their  nature  executive,  such  as  the  veto  power ; the 


01.  6,  7,  1.]  PRESIDENT,  175.  171 

treaty-making  power ; the  appointing  power,  and  the  pardoning  165. 
power.  Bates  on  Habeas  Corpus , 5fch  July,  1861. 

Sec.  II. — ri.]  The  President  shall  be  commander-in- what 

<11*0  ttl0 

chief  of  the  army  and  navy  of  the  United  States,  and  President’s 
of  the  militia  of  the  several  States,  when  called  into  12Z178. 


the  actual  service  of  the  United  States;  he  may  iso. 
require  the  opinion,  in  writing,  of  the  principal  officer  416. 
in  each  of  the  executive  departments,  upon  any  sub- 
ject relating  to  the  duties  of  their  respective  offices,  177. 
and  he  shall  have  power  to  grant  reprieves  and  par-  40, 191. 
dons  for  offenses  against  the  United  States,  except  in  417. 
cases  of  impeachment.  194. 


175.  “ Commander-in-Chief.” — This  was  to  give  the  exercise  Why  com- 
of  power  by  a single  hand.  See  1 Kent’s  Com.  Lect.  13,  p.  283  ; 3 mander? 
Elliot’s  Debates,  103;  Story’s  Const,  g 1491,  1492;  Rawle’s  Const, 
ch.  20,  p.  193.  The  power  may  be  delegated.  Id.  5 Marshall’s  415. 
Life  of  Washington,  ch.  8,  pp.  583,  584,  588. 

The  President  is  not  obliged  to  take,  personally,  the  command  of  Must  he 
the  militia,  when  called  into  the  service  of  the  .general  government,  Cg™^na?d  in 
but  he  may  place  them  under  the  command  of  officers  of  the  army  peib0n  4 
of  the  United  States,  to  whom,  in  his  absence,  he  may  delegate  the 
powers  vested  in  him  by  the  Constitution.  Any  officer  of  the  army 
may,  therefore,  be  required,  by  orders  emanating  from  the  Presi- 
dent, to  perform  the  appropriate  duties  of  his  station  in  the  militia, 
when  in  the  service  of  the  United  States,  whenever  the  public 
interest  shall  so  require.  But  this  power  must  be  exercised  in 
strict  accordance  with  the  right  of  appointment  of  militia  officers, 
which  is  expressly  reserved  to  the  States.  2 Opin.  711-12.  See 
2 Story’s  Const.  § 1490-2.  As  commander-in-chief,  the  President 
has  the  right  to  decide  what  officer  shall  perform  any  particular  165. 
duty,  and,  as  supreme  executive  magistrate,  he  has  the  power  of 
appointment.  Congress  could  not  take  away  this  power.  9 Op. 

468,  518.  But  this  power  is  to  be  used  only  in  the  manner  pre- 
scribed by  the  legislative  department  9 Op.  518. 

The  President  has  unquestioned  power  to  establish  rules  for  the  What  rules 
government  of  the  army,  and  the  Secretary  of  War  is  his  regular  prae^^t 
organ  to  administer  the  military  establishment  of  the  nation,  and  establish  ? 
rules  and  orders  promulgated  through  him  must  be  received  as 
the  acts  of  the  executive,  and,  as  such,  are  binding  on  all  within 
the  sphere  of  his  authority.  (United  States  v.  Eliason,  1 6 Pet. 

291.)  But  this  power  is  limited,  and  does  not  extend  to  the  repeal 
or  contradiction  of  existing  statutes,  nor  to  the  making  of  provi- 
sions of  a legislative  nature.  (6  Opin.  10.)  Bates,  18th  April, 

1861. 

But  the  powers  of  the  President  over  the  militia,  only  com- 
mence when  those  of  the  governors  cease;  that  is,  when  the 


172 


PRESIDENT — PARDONS,  176,  177.  [Art.  II.,  Sec.  2, 


Militia. 


What  of  • 
opinions  in 
writing  ? 

416 


What  aro 
the  D apart- 
ments, and 
who  are  the 
cabinet? 


Define  re- 
prieves? 


Define 
pardon  ? 


Wlu-n  may 
the  Presi- 
dent 
pardon  ? 


militia  are  called  into  the  actual  service  of  the  United  States.  Id. 
The  President  cannot  establish  a bureau  of  militia.  Id. 

176.  “ Opinions  in  Writing.” — This  practice  commenced  with 
the  administration  of  President  Washington.  The  depository  of 
such  opinions  has  generally  been  in  the  State  department.  The 
attorney-general  frequently  gives  opinions  to  the  President,  as  the 
law  officer  of  the  government,  which  are  published  in  the  current 
series. 

The  “ Departments  ” are  now  called  the  State,  the  Treasury, 
the  War,  the  Navy,  the  Post-office,  the  Attorney-General’s,  and  the 
Interior  departments.  The  heads  of  these  are  known  as  the  Presi- 
dent’s advisers  or  cabinet  officers.  Their  respective  duties  are  de- 
fined by  statutes,  which  will  be  found  collected  under  appropriate 
heads  in  Mr.  Brightly ’s  Digest. 

The  opinions  are  more  frequently  given  in  secret  cabinet  councils. 
But  Mr.  Jefferson  thought  the  separate  opinions  in  writing  more  con- 
sistent with  the  Constitution.  (4  Jeff’s  Corresp.  143,  144.)  Story’s 
Const.  § 1493,  note  3.  Upon  the  reconstruction  laws,  President 
Johnson  took  the  opinions  in  council;  and  he  seems  to  have 
authorized  their  publication. 

177.  “ Reprieves.” — The  withdrawing  of  a sentence  of  death 
for  an  interval  of  time,  whereby  the  execution  is  suspended.  4 Bl. 
Com.  394;  Burrill’s  Law  Die.,  Reprieve;  Ex  parte  Wells,  18  How. 
307,  315  ; Story’s  Const.  3d  Ed.  p.  305,  § 1505.  The  power  is 
not  to  pardon,  but  to  grant  reprieves  and  pardons.  Ex  parte 
Wells,  18  How.  316. 

“And  Pardons.” — In  common  parlance,  forgiveness,  release, 
remission.  Ex  parte.  Wells,  18  How.  307.  In  law  every  pardon  has 
its  particular  denomination.  They  are  general,  special  or  particular, 
conditional  or  absolute,  statutory,  not  necessary  in  some  cases,  and 
in  some  grantable  of  course.  Id. 

Here  it  is  meant,  that  the  power  is  to  be  used  according  to  law ; 
that  is,  as  it  had  been  used  in  England,  and  these  States  when 
they  were  colonies.  Jd.  That  is,  according  to  the  principles 
of  the  English  common  law,  at  the  time  of  the  adoption  of  this 
Constitution.  (United  States  v.  Wilson,  7 Pet.  162.)  Ex  parte 
Wells,  18  How.  309.  Hence,  when  the  words  “to  grant  pardons” 
were  used  in  the  Constitution,  they  conveyed  to  the  mind  the 
authority  as  exercised  by  the  English  crown,  or  by  its  represen- 
tatives in  the  colonies.  (Cathcart  v.  Robinson,  5 Pet.  264,  280; 
navel's  Case,  8 Watts  and  Sergeant,  197.) 

A pardon  is  Said  by  Lord  Coke  to  be  a work  of  mercy,  “ whereby 
the  king,  cither  before  attainder,  sentence,  or  conviction,  or  after, 
forgiveth  any  crime,  offense,  punishment,  execution,  right,  title, 
debt,  or  duty,  temporal  or  ecclesiastical.”  (3  Inst.  233.)  Ex  parte 
Wells,  18  How.  311,  312.  The  whole  subject  discussed.  Id. 

He  may  pardon  as  well  before  trial  and  conviction  as  afterward. 
6 Opin.  20.  (See  the  proclamations  of  amnesty  in  relation  to  the 
rebellion.)  And  after  the  expiration  of  the  fmprisonrnent  which 
forms  a part  of  the  sentence.  Stetler’s  Case,  Phila.  R.  302.  He 
may  grant  a conditional  pardon;  Ex  parte  Wells,  18  How.  307;  1 


01. 1.] 


PARDONS,  1.77, 


173 


Opin.  341 ; provided  the  condition  he  compatible  with  the  genius  417. 
of  our  Constitution  and  laws.  Id.  482.  Where  the  condition  is 
such  that  the  government  has  no  power  to  carry  it  into  effect,  the 
pardon  will  be  in  effect  unconditional.  5 Id.  368.  See  Flavell’s 
Case,  8 W.  & S.  197;  United  States  v.  Wilson,  7 Pet.  161;  People  In  ivhat 
v.  Potter,  1 Parker  C.  R.  47.  The  pardoning  power  includes  that  cases? 
of  remitting  fines,  penalties,  and  forfeitures,  under  the  revenue 
laws;  2 Op.  329;  the  laws  prohibiting  the  slave-trade  ; 4 Id.  573  ; 
fines  imposed  on  defaulting  jurors,  3 Id.  317 ; 4 Id.  458  ; for  a 
contempt  of  court;  3 Id.  622  ; and  in  criminal  cases;  Id.  418; 
even  treason,  amnesty  proclamations,  and  warrants.  And  the 
same  power  is  possessed  over  a judgment,  after  security  for  its 
payment  shall  have  been  given,  as  before.  Id.  But  the  President 
has  no  power  to  remit  the  forfeiture  of  a bail-bond.  4 Id.  144. 

Nor,  it  seems,  can  he,  by  a pardon,  defeat  a legal  interest  or  right 
which  has  become  vested  in  a private  citizen  ; as,  for  example,  the 
vested  right  of  an  officer  making  a seizure.  United  States  v. 

Lancaster,  4 Wash.  C.  C.  64;  4 Opin.  376;  6 Id.  615;  and  see  5 
Id.  532,  579.  The  grant  of  the  pardoning  power  neither  requires 
nor  authorizes  the  President  to  re-examine  the  case  upon  new  facts; 
nor  to  grant  a pardon  upon  the  assumption  of  the  new  facts  alleged. 

1 Opin.  359.  A pardon  is  a private  though  official  act;  it  must  be  Muat  the 
delivered  to  and  accepted  by  the  criminal,  and  cannot  be  noticed  by  pardon  be 
the  court,  unless  brought  before  it  judicially  by  plea,  motion,  oraccePte 
otherwise.  United  States  v.  Wilson,  7 Pet.  150.  The  President 
alone  can  pardon  offenses  committed  in  a territory  in  violation  of  231* 

acts  of  Congress  7 Opin.  561.  He  has  power  to  order  a nolle  232- 

proseqm  in  any  stage  of  a criminal  proceeding,  in  the  name  of  the 
United  States.  5 Id.  729.  He  pardoned  the  rebels  upon  their 
taking  the  oath  of  amnesty,  with  certain  exceptions,  by  general 
proclamation.  The  warrants  issued  to  those  within  special  excep- 
tions were  all  conditional. 

The  power  to  pardon  is  unlimited,  with  the  exceptions  stated.  what  is  the 
It  extends  to  every  offense  known  to  the  law,  and  may  be  exercised  extent  of  the 
at  any  time  after  its  commission,  either  before  legal  proceedings  power  • 
are  taken,  or  during  their  pendency,  or  after  conviction  and  judg- 
ment. This  power  of  the  President  is  not  subject  to  legislative 
control. 

Congress  can  neither  limit  the  effect  of  his  pardon,  nor  exclude  Can  Con- 
from  its  exercise  any  class  of  offenders.  The  benign  prerogative  of  &*eBS 
mercy  cannot  be  fettered  by  any  legislative  restrictions.  Ex  parte 1 e par  on 
Garland,  4 Wall.  380. 

A pardon  reaches  both  the  punishment  prescribed  for  the  offense  what  does 
and  the  guilt  of  the  offender ; and  when  the  pardon  is  full,  it  re-  the  pardon 
leases  the  punishment  and  blots  out  the  existence  of  the  guilt ; so  reacil  ? 
that  in  the  eye  of  the  law  the  offender  is  as  innocent  as  if  he  had 
never  committed  the  offense.  If  granted  before  conviction,  it  pre-  418. 
vents  any  of  the  disabilities  consequent  upon  conviction  from 
attaching ; if  granted  after  conviction,  it  removes  the  penalties  and 
disabilities,  and  restores  him  to  all  his  civil  rights ; it  makes  him, 
as  it  were,  a new  man,  and  gives  him  a new  credit  and  capacity. 

Ex  parte  Garland,  4 Wallace,  380,  381.  This  court  is  obliged  to 
conform  to  these  principles.  Judge  Duval,  in  the  case  of  the  United 


174 


president’s  POWERS,  177,  178.  [Art.  II.,  Sec.  2, 


Devine.  States  v.  Devine,  Texas,  June  Term,  1867.  There  is  only  one 
limitation  to  its  operation ; it  does  not  restore  offices  forfeited,  or 
property  or  interests  vested  in  others  in  consequence  of  the  convic- 
tion and  judgment.  (4  Blackstone’s  Com.  402  ; 6 Bacon’s  Abridg- 
ment, tit.  Pardon ; Hawkins,  hook  2,  ch.  37,  § 44  and  54.)  Ex 
jparte  Garland,  4 Wallace.  381. 

What  ia  the  The  pardon  produced  by  the  petitioner  is  a full  pardon  “for  all 
effect  of  tho  offenses,  from  participation,  direct  or  implied,  in  the  rebellion.” 
the  rebels?  This  re^eves  from  all  penalties  and  disabilities  attached  to  the 
142, 143,  242,  offense  of  treason,  committed  by  his  participation  in  the  rebellion. 
254.  So  far  as  that  offense  is  concerned,  he  is  thus  placed  beyond  the 

reach  of  punishment  of  any  kind.  (Ex  parte  Garland,  4 Wallace, 
381.)  The  United  States  v.  Devine,  before  Judge  Duval,  in  the 
United  States  Circuit  Court  for  the  Western  District  of  Texas, 
242.  June  Term,  1867.  The  expurgatory  oath  required  by  attorneys 
274.  cannot  affect  an  attorney,  who  had  been  previously  such  of  the 
court,  after  pardon.  Congress  cannot  inflict  punishment  beyond 
the  reach  of  executive  clemency.  Ex  parte  Garland,  4 Wallace, 
381. 

The  remission  of  a penalty  after  it  has  been  paid  has  no  effect. 
Edwin  M.  Stanton,  Attorney- General,  3d  Jan.  1861. 

See  1 Kent’s  Com.  11  Ed.  Part  II.  Lect.  13,  p.  283-285  and 
notes;  Story’s  Const.  § 1494,  1504;  Federalist,  No.  74;  2 Wilson’s 
Law  Lect.  198-200;  2 Elliot’s  Debates,  366  ; Rawle’s  Const,  ch.  17, 
p.  178. 


What  is  the  [2.]  He  shall  have  power,  by  and  with  the  advice 
th<Tpre°sfi-  and  consent  of  the  Senate,  to  make  treaties,  provided 
treaties ^nd two-thirds  of  the  Senators  present  concur;  and  he 


appoint- 
ments ? 


shall  nominate,  and  by  and  with  the  advice  and  con- 


179.  sent  of  the  Senate,  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the  Supreme 
426.  Court,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  herein  otherwise  pro- 
vided for,  and  which  shall  be  established  by  law. 
But  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the 
188.  President  alone,  in  the  courts  of  law,  or  in  the  heads 


of  departments. 


\7S.  “He  shall  have  power,  by  and  with  the  advice 

AND  CONSENT  OF  THE  SENATE,  TO  MAKE  TREATIES,  PROVIDED 
TWO-THIRDS  OF  THE  SENATORS  PRESENT  CONCUR.” 

How  iB  the  This  “ advice  and  consent  ” is  usually  given  after  the  treaty,  or 
advice  appointment  is  made  and  signed  by  the  President.  The  work  is 

Iriveii  ? then  sont  t0  Senate,  to  ask  the  “ Concurrence  of  two-thirds.” 

But  it  is  in  the  option  of  the  President  to  ask  the  advice  and  con- 


l 


01.  2.] 


president’s  powers,  178,  179. 


175 


sent  of  the  Senate  in  advance,  and  it  was  so  asked  by  President  Treaties. 
Polk  upon  the  ratification  of  the  Treaty  with  Great  Britain,  in 
1846,  relative  to  Oregon.  See  5 Marshall’s  Life  of  Washington, 
ch.  2,  p.  223;  Executive  Journal,  11th  Aug.  1790,  pp.  60,  61; 

Rawle’s  Const,  ch.  7,  pp.  63,  64;  Story’s  Const.  § 1523  ; see  Senate 
Journal  and  Debates  of  July,  1846,  upon  the  Oregon  Treaty. 

“ Make  Treaties.” — [Foedusi]  An  agreement  between  two  or  What  is  a 
more  independent  States.  Braude.  An  agreement,  league,  or  con-  treaty  ? 
tract  between  two  or  more  nations  or  sovereigns,  formally  signed 
by  commissioners  properly  authorized,  and  solemnly  ratified  by  the 
several  sovereigns,  or  the  supreme  power  of  each  State.  Webster’s 
Die.,  Treaty  ; Burrill’s  Die.,  Treaty.  See  Halleck’s  International 
Law,  ch.  34,  pp.  189,  844. 

A treaty  is,  in  its  nature,  a contract  between  two  nations  ; not  a 199. 
legislative  act.  It  does  not  generally  effect,  of  itself,  the  object  to 
be  accomplished,  especially  so  far  as  its  operation  infra-territorial, 
but  is  carried  into  execution  by  the  sovereign  power  of  the  respect- 
ive parties  to  the  instrument.  Foster  & Elam  v.  Neilson,  2 Peters, 

314. 

In  the  United  States  a different  principle  is  established.  Our 
Constitution  declares  a treaty  to  be  the  law  of  the  land.  It  is,  con- 
sequently, to  be  regarded  in  courts  of  justice  as  equivalent  to  an 
act  of  the  legislature,  wherever  it  operates  of  itself  without  the  aid 
of  any  legislative  provision.  But  when  the  terms  of  the  stipula- 
tion import  a contract,  when  either  of  the  parties  engages  to  per-  199. 

form  a particular  act,  the  treaty  addresses  itself  to  the  political,  240* 

not  the  judicial  department ; and  the  legislature  must  execute  the 
contract  before  it  can  become  a rule  for  the  court.  Id. 

The  power  extends  to  every  kind  of  treaty.  Story’s  Const.  § 1508. 

But  the  power  cannot  be  exercised  to  override  other  parts  of  the 
Constitution,  and  to  destroy  the  fundamental  principles  of  the  gov- 
ernment. Id.;  Woodeson’s  Elem.  of  Jurisprudence,  31;  4 Jeff’s 
Corresp.  2,  3,  498;  Rawle’s  Cont.  63-75.  See  the  power  discussed. 

Stop’s  Const.  § 1508,  1523;  Ware  v.  Hylton,  3 Dali.  272-276. 

179.  “ He  shall  nominate.” — The  word  as  here  used  means  Define 
to  recommend,  in  writing  to  the  Senate,  the  name  of  an  appointee  nominate? 
for  confirmation.  It  is  in  this  form  the  “advice  of  the  Senate”  is 
asked.  This  is  the  sole  act  of  the  President,  and  is  voluntary. 

Marbury  v.  Madison,  1 Cr.  137;  1 Peter’s  Cond.  270;  Story’s 
Const.  § 1548. 

But  the  practice,  when  the  Senate  is  not  in  session  (and  I think 
sometimes  when  it  is),  is,  that  the  President  fills  vacancies,  and 
the  appointee  qualifies  and  enters  upon  the  duties  of  his  office.  In 
such  cases,  the  nomination  is  not  confined  to  the  provisional 
appointee ; but  the  President  may  an#d  often  does  appoint  another. 

See  Stanbery  on  appointments  to  office.  14-19. 

“ And  by  and  with  the  Advice  and  Consent  of  the  Senate  Appoint  ? 
shall  Appoint.” — It  will  be  observed  that,  as  in  the  nomination , 
the  duty  is  imperative — “ shall  nominate"  “ shall  appoint .” 

This  power  to  fill  vacancies  is  in  the  President,  with  the  assent 
of  the  Senate,  whilst  that  body  is  in  session,  and  in  the  President 
alone  when  the  Senate  is  not  in  ‘session.  There  is  no  reason  upon 


176 


APPOINTMENTS,  179. 


[Art.  II.,  Sec.  2, 


Vacancy. 


What  is  the 
effect  of  an 
appointment 
during  the 
recess  ? 

189. 


What  is  the 
effect  of  the 
confirma- 
tion? 


What 
powers  can 
the  Presi- 
dent confer  ? 


What  is  the 
effect  of  the 
commis- 
sion ? 

184. 


which  the  power  to  fill  a vacancy  can  be  limited  by  the  state  of 
things  when  it  first  occurred.  On  the  contrary,  the  only  inquiry 
is  as  to  the  state  of  things  when  it  is  filled. 

All  admit  that  whenever  there  is  a vacancy  existing  during  the 
session,  whether  it  first  occurred  in  the  recess  or  after  the  session 
began,  the  power  to  fill  requires  the  concurrent  action  of  the  Presi- 
dent and  Senate.  It  seems  a necessary  corollary  to  this,  that 
where  the  vacancy  exists  in  the  recess,  whether  it  first  occurred 
in  the  recess  or  in  the  preceding  session,  the  power  to  fill  is  in  the 
President  alone.  If.  during  the  recess,  the  power  is  not  in  the 
President,  it  is  nowhere,  and  there  is  a time  when  for  a season 
the  President  is  required  to  see  that  the  laws  are  executed,  and 
yet  denied  every  means  provided  for  their  execution.  Stanbery. 

Nevertheless,  it  comes  back  to  the  point  that  the  President  can 
only  “ appoint,”  with  the  concurrence  of  the  Senate ; and  all  the 
appointments  whether  during  the  recess,  or  the  session  of  the 
Senate  are  provisional  only,  and  subject  to  the  concurrence,  in 
common  parlance,  “ ratification,”  of  that  body. 

Hence  his  power  at  all  times  to  vacate  offices  and  to  fill  vacan- 
cies. He  can,  by  his  own  act,  do  every  thing  but  give  full  title  to 
his  appointees,  and  invest  them  with  the  right  to  hold  during  the 
official  term.  That  he  cannot  do  without  the  consent  of  the  Senate ; 
but  such  is  his  power  over  officers,  that,  after  the  Senate  has  con- 
sented to  his  nomination,  or  in  common  parlance,  has  confirmed  it, 
the  nominee  is  not  yet  fully  appointed,  or  even  entitled  to  the  office, 
for  it  still  remains  with  the  President  to  give  him  a commission  or 
to  refuse  it,  as  he  may  deem  best ; and  without  the  commission 
there  is  no  appointment.  This  was  held  by  the  Supreme  Court  in 
Marbury  v.  Madison,  1 Cr.  137,  155,  156;  and  when  to  that  deci- 
sion we  add  the  doctrine  recognized  by  the  same  court  in  Ex  parte 
Hennen,  (13  Pet.  213),  we  see  how  fully  the  appointment  and 
removal  of  officers  is  held  to  be  a necessary  incident  of  executive 
power.  Stanbery,  18,  19. 

The  nomination  and  appointment  are  voluntary  acts,  and  distinct 
from  the  commissioning.  Marbury  v.  Madison,  1 Cr.  1*55-6.  Even 
after  confirmation,  the  President  may,  in  his  discretion,  withhold 
a commission ; and,  until  a commission  has  been  signed,  the  appoint- 
ment is  not  fully  consummated.  (4  Opin.  218).  Stanbery. 

When  the  Senate  has  concurred  and  the  “commission”  is  signed 
by  the  President,  even  before  delivery,  the  appointment  is  com- 
plete, and  the  officer  has  vested  legal  rights  which  cannot  be 
resumed.  Marbury  v.  Madison,  1 Cr.  156;  United  States  v.  Le 
Baron,  19  How.  74^  Story’s  Const.  § 1548-1554.  Mr.  Jefferson 
refused  to  act  upon  tins  decision,  and  claimed  the  power  to  with- 
hold the  commission.  4 Jeff.  Corr.  75,  317,  372;  Rawle  on  the 
Const.  166;  Story’s  Const.  § 1553,  note  1. 

To  “appoint,”  and  to  “commission,”  are  not  one  and  the  same 
thing.  Marbury  v.  Madison,  1 Cr.  155.  The  commission  is  not 
necessarily  the  appointment,  although  conclusive  evidence  of  the 
fact.  Id. ; United  States  v.  Le  Baron,  19  How.  74. 

When  the  appointee  refuses  to  accept,  the  successor  is  nominated 
in  his  place,  and  not  in  the  place  qf  the  person  who  had  been  pre- 


01.  2.] 


APPOINTMENTS,  180-188. 


177 


viously  in  the  office  and  had  created  a vacancy.  (Marbtiry  v.  42if 

Madison,  1 Cr.  137-156.)  Story’s  Const.  § 1554.  See  also  John-  422.’ 

son  v.  United  States,  5 Mason,  425,  438,  439;  United  States  v. 
Kirkpatrick,  4 Wheat.  733,  734;  Bowerbank  v.  Morris,  Wallace 
Cir.  R.  425,  438,  439;  Thompson’s  Case,  3 P.  Will.  194;  Boucher 
v.  Wiseman,  Cro.  Eliz.  440 ; Burch  v.  Maypowder,  1 Vt.  400. 

180.  “ Ambassadors,  other  Public  Ministers,  and  Consuls.”  What  is  an 
— “Ambassadors,”  comprehend  the  highest  grade  only  of  public  Ambassa- 
ministers.  Story's  Const.  § 1525.  See  Grotius,  Yattel,  Martens,  or‘ 
Wicquefort,  Halleck  (ch.  9,  pp.  200-239)  and  Wheaton,  Title,  202. 
Ambassadors.  For  a better  definition,  see  note  202. 

Ambassadors  could  not  include  consuls,  hence  the  enlargement 
of  the  enumeration.  Story’s  Const.  § 1525;  Federalist,  No.  42. 

See  ante,  p.  14,  Art.  IX. 

181.  “Public  Ministers  and  Consuls.” — Consuls. — For  the  iss. 
derivation  of  the  word  consul  ( consulere , consulates , comes , comi - Define  con- 
tatus ),  see  Co.  Litt.  lib.  3,  note  20;  Burrill’s  Law  Die.,  Consul.  suls? 

The  name  of  a chief  magistrate  among  the  Romans,  and  of  Earls, 

from  consulendo , among  the  Britons.  Bract,  fol.  5,  b.  ; 1 Bl.  Com. 

227.  For  the  origin,  history,  and  duty  of  consuls,  see  Halleck’s 
International  Law,  hh.  15,  239-269,  and  the  many  learned  authori- 
ties there  cited. 

In  commercial  and  international  law,  a public  agent,  appointed 
by  a government  to  reside  in  a foreign  country  (and  usually  in 
seaports),  to  watch  over  its  own  commercial  rights  and  privileges, 
and  the  commercial  interests  of  its  citizens  or  subjects.  1 Kent’s 

Com.  41. 


182.  “ JUDGES  OF  THE  SUPREME  COURT,  AND  ALL  OTHER 
Officers  of  the  United  States,  whose  Appointments  are 

NOT  HEREIN  OTHERWISE  PROVIDED  FOR,  AND  WHICH  SHALL  BE 

established  by  Law.” 

Judges  of  the  Supreme  Court  are  defined  in  the  Constitution. 
(Art.  III.  sec.  I.) 

The  effect  of  this  and  other  clauses  of  the  Constitution,  on  the 
subject  of  the  appointments  to  office,  is  to  declare  that  all  offices 
under  the  federal  government,  except  in  cases  where  the  Constitu- 
tion itself  may  otherwise  provide,  shall  be  established  by  law. 
United  States  v.  Maurice,  2 Brock.  96. 

Every  thing  concerning  the  administration  of  justice,  or  the 
general  interests  of  society  may  be  supposed  to  be  within  the 
meaning  of  the  Constitution,  especially  if  fees  and  emoluments  are 
annexed  to  the  office.  But  there  are  matters  of  temporary  and 
local  concern,  which,  although  comprehended  in  the  term  officers, 
have  not  been  thought  to  be  embraced  by  the  Constitution. 
(Lehman  v.  Sutherland,  3 Serg.  Rawle,  149.)  Attorney-Gen- 
eral Stanbery’s  Opinion  on  the  Reconstruction  Laws,  24th  May, 
1867,  p.  12. 

183.  “But  the  Congress  may  vest  by  Law  the  Appoint- 
ment, etc.,*  of  Inferior  Officers  in  the  President  alone,  in 
the  Courts  of  Law,  or  in  the  Heads  of  Departments.” — Here 


What  offi- 
cers can 
the  Presi- 
dent 
appoint  ? 

179. 


Where  else 
may  the 
appointing 
power  be 
vested  ? 


I 


178 


REMOVAL,  184. 


[Art.  XL,  Sec.  2, 


179-1S2. 


Officers 
commis- 
sioned ? 


Tenure  of 
office  ? 

Can  the 
President 
remove  as 
well  as 
appoint  ? 
179, 180. 


To  what  is 
the  Senate’s 
action  con- 
fined. 

193,  194. 


185. 


Art.  III., 
Sec.  1. 


184. 


the  duty  of  commissioning  is  distinct  from  the  appointment.  The 
legislature  might  require  commissions.  Marbury  v.  Madison,  1 
Cr.  157;  Story’s  Const.  § 1548. 

Clerks  of  courts  are  such  officers;  and,  in  such  cases,  the  power 
of  removal  is  incident  to  the  power  of  appointment.  Ex  parte 
Hennen,  13  Pet.  230,  259.  And  may  be  exercised  by  the  court 
which  appointed.  Id. 

The  President  cannot  appoint  a commissioner  of  bail,  affidavits, 
&c.  That  power  belongs  to  the  circuit  courts.  Bates,  24th  June, 
1861. 

184.  The  Power  of  Removal.  The  power  of  the  President 
to  appoint  to  office,  necessarily  includes  the  power  to  remove  all 
officers  appointed  and  commissioned  by  him,  where  the  Constitution 
has  not  otherwise  provided.  Therefore  he  may  remove  a territorial 
judge,  in  his  discretion.  5 Opin.  288  ; 3 Id.  673  ; 4 Id.  003,  608-9 ; 
4 Elliot’s  Debates,  350 ; Ex  parte  Hennen,  13  Pet.  259.  And  he 
may  cause  a military  officer  to  be  stricken  from  the  rolls,  without  a 
trial  by  court-martial,  notwithstanding  a decision  in  his  favor  by  a 
court  of  inquiry.  4 Opin.  1.;  2 Story's  Const.  § 1538;  Stanbery, 
17-19.  But  see  act  of  13th  July,  1866,  in  this  note ; Story’s  Const. 
§ 1549-1554. 

The  Senate  cannot  originate  an  appointment ; its  constitutional 
action  is  confined  to  a simple  affirmation  or  rejection  of  the  Presi- 
dent’s nominations;  and  such  nominations  fail  whenever  it  dis- 
agrees to  them.  3 Opin.  188  ; Stanbery,  18. 

This  clause  gives  him  power  to  appoint  diplomatic  agents  of  any 
rank,  at  any  place,  and  at  any  time,  in  his  discretion,  subject  to  the 
approbation  of  the  Senate  ; and  this  power  cannot  be  limited  by  act 
of  Congress.  7 Opin.  186. 

Nothing  is  said  about  the  power  of  removal  by  the  executive  of 
any  officers  whomsoever.  As,  however,  the  tenure  of  office  of  no 
officers  except  those  in  the  judicial  department,  is,  by  the  Constitu- 
tion, provided  to  be  during  good  behavior,  it  follows,  by  irresistible 
inference,  that  all  others  must  hold  their  offices  during  pleasure, 
unless  Congress  shall  have  given  some  other  duration  to  their 
office.  (1  Lloyd’s  Debates,  511,  512.)  Story’s  Const.  § 1537 ; 
Keenan  v.  Perry,  24  Tex.  258.  In  the  absence  of  a constitutional 
or  statutory  provision,  the  power  of  removal  would  seem  to  be  in- 
cident to  the  powei%f  appointment.  (Ex parte  Hennen,  13  Pet.  259.) 
Keenan  v.  Perry,  24  Tex.  258. 

As  far  as  Congress  constitutionally  possesses  the  power  to 
regulate  and  delegate  the  appointment  of  “ inferior  officers,” 
so  far  they  may  prescribe  the  term  of  office,  the  manner  in  which, 
and  the  persons  by  whom,  the  removal,  as  well  as  the  appointment 
to  office,  shall  be  made.  (Marbury  v.  Madison,  1 Cranch,  137,  155.) 
Story’s  Const.  § 1537.  See  Monroe’s  Message  of  12th  April,  1822, 
1 Executive  Journal,  286;  Sergt’s  Const,  ell.  29  [31 J;  5 Mar- 
shall’s Life  of  Washington,  ch.  3,  p.  196-200 ; 1 Lloyd’s  Debates, 
351-366.  and  450-600;  Id.  1-12. 

The  removal  takes  place  in  virtue  of  the  new  appqintment,  by 
mere  operation  of  law.  Ex  parte  Hennen,  13  Pet.  300;  Federalist, 
No.  77. 


01.  2.] 


TENURE  OF  OFFICE,  184. 


179 


“The  consent  of  the  Senate  would  bo  necessary  to  displace  as  421, 

well  as  to  appoint.”  (Federalist,  No.  77.)  Story’s  Const.  § 1540.  424.* 

While  Mr.  Madison  claimed  the  power  to  remove,  he  said,  “ the 
wanton  removal  of  meritorious  officers  would  subject  him  (the  191-194 
President)  to  impeachment.”  (1  Lloyd’s  Debates,  503  ; and  see 
Id.  351,  366,  450,  480-600;  4 Elliot’s  Debates,  141-207. 

The  first  limitation  on  the  President’s  power  of  removal  is  as  How  are  the 
follows : “ And  no  officer  in  the  military  or  naval  service  shall,  in  military  re- 
time of  peace,  be  dismissed  from  service  except  upon,  and  in  pur-  move 
suance  of,  the  sentence  of  a court-martial  to  that  effect,  or  in  com- 
mutation thereof.”  Act  of  13th  July,  1866,  14  St.  p.  92,  § 5. 

In  the  differences  between  the  President  and  Congress,  the 
question  was  again  discussed  by  the  thirty-ninth  Congress ; and 
although  not  very  elaborately  argued,  the  positions  taken  for  and 
against  the  power  were  urged,  and  will  bo  found  in  the  Congres- 
sional Globe  of  that  session,  and  in  the  President’s  veto  of  the 
following  law : — 

An  Act  regulating  the  Tenure  of  certain  Civil  Offices . Act  of 

“Sec.  1.  Every  person  holding  any  civil  office  to  which  he  has  1867^4 St. 
been  appointed  by  and  with  the  advice  and  consent  of  the  Senate,  430.  ’ 
and  every  person  who  shall  hereafter  be  appointed  to  any  such  what  is 
office,  and  shall  become  duly  qualified  to  act  therein,  is,  and  shall  be  tenure  of 
entitled  to  hold  such  office  until  a successor  shall  have  been  in  like  ^^ers  ? 
manner  appointed  and  duly  qualified,  except  as  herein  otherwise  Wit^rww 
provided : Provided,  That  the  Secretaries  of  State,  of  the  Treasury,  exceptTons? 
of  War,  of  the  Navjq  and  of  the  Interior,  the  Postmaster-General, 
and  the  Attorney-General,  shall  hold  their  offices  respectively  for  Omitted, 
and  during  the  term  of  the  President,  by  whom  they  may  have 
been  appointed,  and  for  one  month  thereafter,  subject  to  removal 
by  and  with  the  advice  and  consent  of  the  Senate. 

“ 2.  When  any  officer  appointed  as  aforesaid,  excepting  judges  When  may 
of  the  United  States  Courts,  shall,  during  a recess  of  the  Senate,  be  the  Presi- 
shown,  by  evidence  satisfactory  to  the  President,  to  be  guilty  of  pend  and 
misconduct  in  office,  or  crime,  or  for  any  reason  shall  become  in-  temporarily 
capable  or  legally  disqualified  to  perform  its  duties,  in  such  case,  appoint  ? 
and  in  no  other,  the  President  may  suspend  such  officer  and 
designate  some  suitable  person  to  perform  temporarily  the  duties 
of  such  office  until  the  next  meeting  of  the  Senate,  and  until  the 
case  shall  be  acted  upon  by  the  Senate,  and  such  person  so  desig- 
nated shall  take  the  oaths  and  give  the  bonds  required  by  law  to 
be  taken  and  given  by  the  person  duly  appointed  to  fill  such  office  ; 
and  in  such  case  it  shall  be  the  duty  of  the  President,  within  30. 
twenty  days  after  the  first  day  of  such  next  meeting  of  the  Senate,  To  whom  to 
to  report  to  the  Senate  such  suspension,  with  the  evidence  and  report  ? 
reasons  for  his  action  in  the  case,  and  the  name  of  the  person  so 
designated  to  perform  the  duties  of  such  office.  And  if  the 
Senate  shall  concur  in  such  suspension,  and  advise  and  consent  to 
the  removal  of  such  officer,  they  shall  so  certify  to  the  President, 
who  may  thereupon  remove  such  officer,  and,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  appoint  another  person  to  such  If  fh0 
office.  But  if  the  Senate  shall  refuse  to  concur  in  such  suspension,  refus^to 
such  officer  so  suspended  shall  forthwith  resume  the  functions  of  concur  ? 


180 


TENURE  OF  OFFICE,  184.  [Art;  II..  Sec.  2, 


426. 


May  the 
President 
revoke  the 
removal  ? 


If  the 
Senate  re- 
fuse to 
con  cur  in 
vacancies  ? 


What  limit 
on  term  ? 

What 
penalty  for 
accepting  or 
exercising 
office  con- 
trary to  this 
act? 


And  for 
removal, 
<fcc.,  con- 
trary to  the 
act? 


When  may 
the  Presi- 
dent com- 
mission? 


How  are 
rejections  to 
be  certified  ? 


his  office,  and  the  powers  of  the  person  so  performing  its  duties  in 
his  stead  shall  cease,  and  the  official  salary  and  emoluments  of  such 
Officer  shall,  during  such  suspension,  belong  to  the  person  so  per- 
forming the  duties  thereof,  and  not  to  the  officer  so  suspended: 
Provided,  however , That  the  President,  in  case  he  shall  become 
satisfied  that  such  suspension  was  made  on'  insufficient  grounds, 
shall  be  authorized,  at  any  time  before  reporting  such  suspension 
to  the  Senate  as  above  provided,  to  revoke  such  suspension  and 
reinstate  such  officer  in  the  performance  of  the  duties  of  his 
office. 

a3.  The  President  shall  have  power  to  fill  all  vacancies  which 
may  happen  during  the  recess  of  the  Senate,  by  reason  of  death  or 
resignation,  by  granting  commissions  which  shall  expire  at  the  end 
of  their  next  session  thereafter.  And  if  no  appointment,  by  and 
with  the  advice  and  consent  of  the  Senate,  shall  be  made  to  such 
office  so  vacant  or  temporarily  filled  as  aforesaid  during  such  next 
session  of  the  Senate,  such  office  shall  remain  in  abeyance,  without 
any  salary,  fees,  or  emoluments  attached  thereto,  until  the  same 
shall  be  filled  by  appointment  thereto,  by  and  with  the  advice  and 
consent  of  the  Senate;  and  during  such  time  all  the  powers  and 
duties  belonging  to  such  office  shall  be  exercised  by  such  other 
officer  as  may  by  law  exercise  such  powers  and  duties  in  case  of  a 
vacancy  in  such  office. 

“4.  Nothing  in  this  act  contained  shall  be  construed  to  extend 
the  term  of  any  office  the  duration  of  which  is  limited  by  law. 

“ 5.  If  any  person  shall,  contrary  to  the  provisions  of  this  act, 
accept  any  appointment  to,  or  employment  in,  any  office,  or  shall 
hold  or  exercise,  or  attempt  to  hold  or  exercise,  any  such  office  or 
employment,  he  shall  be  deemed,  and  is  hereby  declared  to  be, 
guilty  of  a high  misdemeanor,  and,  upon  trial  and  conviction  thereof, 
he  shall  be  punished  therefor  by  a fine  not  exceeding  ten  thousand 
dollars,  or  by  imprisonment  not  exceeding  five  years,  or  both  said 
punishments,  in  the  discretion  of  the  court. 

a G.  Every  removal,  appointment,  or  employment,  made,  had,  or 
exercised,  contrary  to  the  provisions  of  this  act,  and  the  making,  sign- 
ing, sealing,  countersigning,  or  issuing  of  any  commission  or  letter  of 
authority  for  or  in  respect  to  any  such  appointment  or  employment, 
shall  be  deemed,  and  are  hereby  declared  to  be,  high  misdemeanors, 
and,  upon  trial  and  conviction  thereof,  every  person  guilty  thereof 
shall  be  punished  by  a fine  not  exceeding  ten  thousand  dollars,  or 
by  imprisonment  not  exceeding  five  years,  or  both  said  puDish 
ments,  in  the  discretion  of  the  court:  Provided , That  the  President 
shall  have  power  to  make  out  and  deliver,  after  the  adjournment 
of  the  Senate,  commissions  for  all  officers  whose  appointment  shall 
have  been  advised  and  consented  to  by  the  Senate.  4 

“7.  It  shall  be  the  duty  of  the  secretary  of  the  Senate,  at  the 
close  of  each  session  thereof,  to  deliver  to  the  Secretary  of  the 
Treasury,  and  to  each  of  his  assistants,  and  to  each  of  the  auditors, 
and  to  each  of  the  comptrollers  in  the  treasury,  and  to  the  trea- 
surer, and  to  the  register  of  the  treasury,  a full  and  complete  list, 
duly  certified,  of  all  the  persons  who  shall  have  been  nominated  to 
and  rejected  by  the  Senate  during  such  session,  and  a liko  list  of 


Cl.  2.] 


TENURE  OF  OFFICE,  184. 


181 


all  the  offices  to  which  nominations  shall  have  been  made  and  not  426. 
confirmed  and  filled  at  such  session. 

“ 8.  Whenever  the  President  shall,  without  the  advice  and  con-  What  is  the 
sent  of  the  Senate,  designate,  authorize,  or  employ  any  person  to  duty  of 
perform  the  duties  of  any  office,  he  shall  forthwith  notify  the  subcase?111 
Secretary  of  the  Treasury  thereof ; and  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  thereupon  to  communicate  such  notice 
to  all  the  proper  accounting  and  disbursing  officers  of  his  depart- 
ment. 

“ 9.  No  money  shall  be  paid  or  received  from  the  treasury,  or  What  re- 
paid or  received  from  or  retained  out  of  any  public  moneys  or  funds  strictions  as 
of  the  United  States,  whether  in  the  treasury  or  not,  to  or  by  or  to  pay? 
for  the  benefit  of  any  person  appointed  to  or  authorized  to  act  in  or 
holding  or  exercising  the  duties  or  functions  of  any  office  contrary 
to  the  provisions  of  this  act;  nor  shall  any  claim,  account, 
voucher,  order,  certificate,  warrant,  or  other  instrument,  providing 
for  or  relating  to  such  payment,  receipt,  or  retention,  be  presented, 
passed,  allowed,  approved,  certified,  or  paid  by  any  officer  of  the 
United  States,  or  by  any  person  exercising  the  functions  or  per- 
forming the  duties  of  any  office  or  place  of  trust  under  the  United 
States,  for  or  in  respect  to  such  office,  or  the  exercising  or  perform- 
ing the  functions  or  duties  thereof ; and  every  person  who  shall 
violate  any  of  the  provisions  of  this  section  shall  be  deemed  guilty  What 
of  a high  misdemeanor,  and,  upon  trial  or  conviction  thereof,  shall  penalty  for 
be  punished  therefor  by  a fine  not  exceeding  ten  thousand  dollars,  V1°  atlon? 
or  by  imprisonment  not  exceeding  ten  years,  or  both  said  punish- 
ments, in  the  discretion  of  the  court.”  Passed  over  the  President’s^  stats.  430. 
veto,  2 March,  1867. 

See  the  Debates  in  1789,  on  the  question  Whether  the  heads  of  Are  tue 
departments  were  “ inferior  officers  ?”  1 Lloyd’s  Debates,  480-600 ; Cabinet  in 
2 Id.  1-12.  The  result  of  the  debate  seems  to  have  been  that  they  £ 0 
were  not.  (Rawle’s  Const,  ch.  14,  pp.  163,  164;  Sergeant  on  the 
Const,  ch.  29  [ch.  31]  ; see  President  Monroe’s  Message  of  12th 
April,  1822.)  Story’s  Const.  § 1536-1539.  The  President  was  43-^ 
overruled  by  the  Senate,  which  contended  that,  as  Congress  pos-  191*. 

sessed  the  power  to  make  rules  and  regulations  for  the  land  and 
naval  forces,  they  had  a right  to  make  any  which  would  promote 
the  public  service ; that  Congress  fixes  the  promotions,  and  every 
promotion  is  a new  appointment,  which  requires  ratification. 

(Sergeant’s  Const,  ch.  29)  [ch.  31.] 

The  power  to  nominate  does  not  naturally  or  necessarily  include 
the  power  to  remove;  and  if  the  power  to  appoint  does  include  it,  1T9. 
then  the  latter  belongs  conjointly  to  the  executive  and  Senate. 

Story’s  Const.  § 1538.  It  results,  and  is  not  separable  from  the 
appointment  itself.  (Ex  parte  Hennen,  13  Pet.  213.)  Story’s  Const. 

§ 1538  ; Federalist,  No.  77. 

The  power  to  remove  by  the  President  was  affirmed  during  the 
administration  of  President  Washington  by  the  casting  vote  of  the 
"Vice-President.  Senate  Journal,  July  18,  1789,  p.  42.  The 
question  was  much  agitated  again  during  the  administration  of 
President  Jackson.  Finally  the  power  has  been  denied,  in  the 
shape  of  the  tenure  of  office  bill,  during  the  administration  of 


[Art.  II.,  Sec.  2, 


182 


421,  426. 


28f 


What  ii  *.\n 
power  to  fiil 
vacancies  ? 

184,  §3. 


If  the  vacan- 
cies occur 
during  the 
cession  ? 

184. 

425, 

426 

25. 

82. 


449,  455. 
How  may 
the  vacancy 
occur? 

179. 


148. 

What  means 
u that  may 
happen” ? 


VACANCIES,  185. 


President  Johnson,  because  of  the  peculiar  attitudes  of  a Pres- 
ident and  a Congress  elected  at  the  same  time,  and  upon  the 
same  platform  of  principles.  Without  pretending  to  assert  posi- 
tively the  constitutionality  of  the  law,  the  editor  ventures  to  pre- 
dict, that  no  political  party  will  ever  entirely  remove  the  restrictions, 
and  leave  the  tenure  of  office  wholly  and  exclusively  at  the  will  of 
the  President.  The  real  evil  results  from  the  too  great  patronage 
in  the  hands  of  the  executive,  and  the  corrupting  influences, 
for  a long  time  so  openly  employed,  by  the  distribution  of 
federal  patronage  to  control  State  elections.  The  evil  could  only 
be  reached  and  Presidential  elections  rendered  peaceful  and  safe 
by  an  organic  change,  which  would  place  the  choice  of  federal 
magistrates  where  the  constitutions  of  the  States  have  generally 
placed  them — in  the  hands  of  the  people  If  time  has  demon- 
strated that  the  elective  democratic  principle  may  be  left  to  the 
wisdom  of  choice,  why  could  not  the  rule  apply  to  many  grades  of 
federal  officers? 

[3.]  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 

185.  “All  vacancies  that  may  happen  during  the  recess 
of  the  Senate.” — Mr.  Wirt,  in  1823,  Mr.  Taney,  in  1832,  and  Mr. 
Legare,  in  1841,  concur  in  opinion  that  vacancies  first  occurring 
during  the  session  of  the  Senate  may  be  filled  by  the  President  in 
the  recess.  Mr.  Mason,  in  a short  opinion  given  in  1 845,  held  that 
vacancies  known  to  exist  during  the  session  could  not  be  filled  in 
the  recess;  but  in  a more  elaborate  opinion,  written  in  1846,  he 
expresses  general  concurrence  with  his  three  predecessors.  All 
these  concurring  opinions  give  a construction  to  the  meaning  of 
the  words;  and  they  agree  that  these  words  are  not  to  be  confined 
to  vacancies  which  first  occur  during  the  recess,  but  may  apply  to 
vacancies  which  first  occur  during  the  session  and  continue  in  the 
recess.  Attorney-General  Stanbery  on  the  President’s  power  in 
the  matter  of  appointments  to  office,  30th  Aug.  1866,  12  Op.  32. 

1.  The  vacancy  may  not  have  become  known  during  the 
recess ; 2.  It  may  have  occurred  by  the  failure  of  the  Senate  to 
act  upon  a nomination : 3.  Or,  upon  a nomination  and  confirma- 
tion, where  the  party  so  nominated  and  confirmed  refuses  in  the 
recess  to  accept  the  office;  4.  Or  by  the  rejection  of  the  nominee 
of  the  President  in  the  last  hour  of  the  session ; 5.  Or  by  the 
failure  of  the  President  to  make  a nomination  during  the  session 
or  after  a rejection  of  his  nominee.  Id. 

The  subject-matter  is  a vacancy.  It  implies  duration — a condi- 
tion or  state  of  things  which  may  exist.  I incline  to  think, 
upon  the  mere  words,  that  we  might  construe  them  precisely 
as  if  the  phrase  were,  “If  it  happen  that  there  is  a vacancy  in 
the  recess,”  or,  “If  a vacancy  happen  to  exist  in  the  roccss.”  Id. 
5,  6. 


Cl.  3.] 


president’s  duties,  186,  187.  183 

But  if  the  office  first  occur  during  the  recess ; or  if  it  be  created  429. 
during  the  session  and  the  President  fail  to  appoint,  he  cannot  ap- 
point during  the  recess.  The  word  “happen”  has  relation  to 
some  casualty,  not  provided  for  by  law.  (The  appointment  of  the 
Ministers  to  Ghent,  in  1813;  Senate  Journal  of  20th  April,  1822  ; 2 
Executive  Journal,  pp.  415,  500;  3 Executive  Journal,  297.) 

Story’s  Const.  § 1559. 

He  may  fill,  during  a recess  of  the  Senate,  a vacancy  that  oc- 
curred by  expiration  of  commission  during  a previous  session.  1 
Opin.  631.  So  he  may  fill  a vacancy  which  has  occurred  by  the 
expiration  of  a former  temporary  appointment,  the  Senate  having 
neglected  to  act  on  a nomination  to  fill  the  office.  3 Id.  673  ; 4 
Id.  523;  2 Id.  525;  4 Id.  361. 

186*  “Which  shall  expire  at  the  end  of  the  Session.” — Length  of 
The  commission  of  an  officer  appointed  during  a recess,  who  is  commis- 
afterward  nominated  and  rejected,  is  not  thereby  determined : it s 
continues  in  force  until  the  end  of  the  next  session,  unless  sooner 
determined  by  the  President.  2 Opin.  336  ; 4 Id.  30. 

It  was  upon  this  state  of  facts  that  Mr.  Taney  gave  his  opinion  What  means 
in  1832,  and  held  on  this  point  that  “the  vacancy  did  take  place  “which  shall 
in  the  recess,”  and  that  “the  former  appointment  continued  e^of  the  & 
during  the  session,  and  there  was  no  vacancy  until  after  they  ad-  session”? 
journed.”  Stanbery  on  filling  vacancies,  6.  184 

If  the  President  appoint  and  commission,  both  expire  at  the 
end  of  the  next  session.  If  he  nominate  the  same  person,  and  the 
Senate  concur,  it  is  a new  appointment;  and  the  bond  given  “to 
fill  up  the  vacancy,”  does  not  apply  to  acts  done  under  the  new 
appointment  and  commission  (United  States  v.  Kirkpatrick,  9 
Wheat.  720.  733,  734,  735.)  Story’s  Const.  § 1538. 

Sec.  III. — He  shall,  from  time  to  time,  give  to  the  what  are 
Congress  information  of  the  state  of  the  Union,  and  enjoined 
recommend  to  their  consideration  such  measures  as  he  president? 
shall  judge  necessary  and  expedient.  He  may,  on  Further 
extraordinary  occasions,  convene  both  houses,  or  either  po'vers 
of  them ; and  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper. 

He  shall  receive  ambassadors  and  other  public  min- 
isters. He  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers  of  the 
United  States. 

187.  “Give  Information  of  the  State  of  the  Union,  and  How  are  the 
Recommend,”  &c. — The  opening  messages  of  Presidents  Washington  opinions 
and  John  Adams  were  delivered  in  person  and  answered.  1 Ben-  given? 
ton’s  Cond.  Debates;  Story’s  Const.  3d  ed.  § 1561,  note  1.  See 


184 


Authorities. 


Have  extra 
sessions 
been 
called  ? 


What  does 
“ ambas- 
sadors and 
other  public 
ministers  ” 
embrace  ? 
180,  181, 

202. 


What  i6  the 
duty  of  the 
President 
to  see  the 
laws  exe- 
cuted ? 

204. 


174, 175. 


PRESIDENT,  187-189.  [Art.  II., 

1 Tuck.  Bl.  Com.  343-345 ; Federalist,  No.  78  ; Rawle’s  Const,  ch. 

16,  p.  111. 

The  practice  was  changed  by  President  Jefferson ; and  ever  since 
all  messages  have  been  delivered  in  writing.  This  “ information 
of  the  state  of  the  Union,”  embraces  the  reports  of  all  the  depart- 
ments, and  altogether  they  constitute  what  are  called  the  executive 
documents  of  the  government,  which  are  valuable  repositories 
for  statesmon  and  students.  Calls  are  often  made  by  Congress  on 
the  President  and  the  heads  of  departments,  for  information  on 
special  matters. 

1§§.  “Mat  call  Congress  together  and  adjourn,”  &c. — 
This  power  of  convening  Congress  in  extra  session,  has  been  fre- 
quently exercised,  both  in  regard  to  Congress  and  the  Senate. 
Never  could  the  necessity  of  the  power  be  more  forcibly  demon- 
strated than  upon  the  occasion  of  its  exercise  by  President  Lincoln, 
in  April,  1863.  See  Federalist,  No.  78 ; Rawle’s  Const.,  ch.  16,  p. 
171. 

It  is  not  remembered  that  the  occasion  ever  has  arisen  for  tho 
President  to  exercise  the  power  to  adjourn  Congress. 

The  power  to  receive  ambassadors  and  other  public  minis- 
ters carries  along  the  power  to  receive  consuls,  and  they  never 
act  without  exequaturs . Rawle’s  Const,  ch.  24,  pp.  224,  225. 
Story’s  Const.  § 1564-1572.  See  Federalist,  No.  42;  1 Kent’s 
Com.  Lect.  2,  pp.  40-44*  Halleck’s  International  Law,  p.  242,  § 4 ; 
Fynn,  British  Consuls  abroad,  pp.  34-55 ; 2 Phillimore  on  Inter- 
national Law,  § 246,  258. 

In  case  of  a revolution,  or  dismemberment  of  a nation,  the  judi- 
ciary cannot  take  notice  of  any  new  government  or  sovereignty, 
until  it  has  been  duly  recognized  by  some  other  department  of  the 
government,  to  whom  the  power  is  constitutionally  confided. 
(United  States  v.  Palmer,  3 Wheat  610,  634,  643;  Hays  v.  Gel- 
ston,  3 Wheat.  246,  323,  324 ; Rose  v.  Himley,  4 Cr.  441 ; the 
Divina  Pastora,  4 Wheat.  52,  and  note  65;  the  Nuestra  Senora 
de  la  Caridad,  4 Wheat.  497.)  Story’s  Const.  § 1566. 

ISO.  “He  shall  take  care  that  the  Laws  be  Faithfully 
Executed.” — That  is,  to  execute  the  laws  to  the  extent  of  the  defen- 
sive means  placed  in  his  hands.  9 Op.  524. 

The  Supreme  Court  of  the  United  States  cannot  enjoin  the  Pres- 
ident from  seeing  the  laws  faithfully  executed.  Mississippi  v. 
Johnson,  4 Wallace,  498.  Where  an  executive  officer  is  clothed 
with  discretion,  the  act  to  be  done  is  executive,  and  beyond  judi- 
cial control.  (Marbury  v.  Madison,  1 Cranch,  137  ; Kendall,  Post- 
master-General v.  Stockton  and  Stokes,  12  Pet.  527.)  Id.;  The 
State  v.  The  Southern  P.  R.  R.  24  Tex.  117 ; Paschal’s  Annotated 
Digest,  note  191. 

It  is  of  tho  very  essence  of  executive  power,  that  it  should  always 
and  everywhere  be  capable  of,  and  be  in,  full  exercise.  There  shall 
be  no  cessation — no  interval  of  time  when  there  may  be  an  inca- 
pacity of  action.  Stanbery  on  filling  vacancies,  8,  9. 

Under  this  power  the  governor  (the  President)  ought  to  order 
suits  in  all  cases  where  the  laws  are  infracted  and  the  rights  of  the 
government  invaded.  The  State  v.  Delesdenier,  7 Tex.  95. 


Sec.  3,  4.] 


IMPEACHMENT,  190,  191. 


185 


100.  “Shall  Commission  all  Officers.” — This  seems  to  be  1S5, 185. 
more  properly  connected  with  the  appointing  of  officers  ; but  it  i3 
not  one  and  the  same  thing.  Marbury  v.  Madison,  1 Cr.  156-7 ; 

Story’s  Const.  § 1548. 

As  incident  to  this  power,  he  has  authority  to  appoint  commis-  What  are 
sioners  and  agents  to  make  investigations  required  by  acts  or  reso- the  Presi- 
lutions  of  Congress;  but  cannot  pay  them,  except  from  an  appro-  p^CrS? 
priation  for  that  purpose.  4 Opin.  248.  It  is  not,  in  general,  F 
judicious  for  him,  in  the  exercise  of  this  power,  to  interfere  in  the 
functions  of  subordinate  officers,  further  than  to  remove  them  for 
any  neglect  or  abuse  of  their  official  trust.  3 Id.  287.  But  where 
combinations  exist  among  the  citizens  of  one  of  the  States,  to 
obstruct  or  defeat  the  execution  of  acts  of  Congress,  and  the  ques- 
tion of  the  constitutionality  of  such  laws  is  made  in  suits  against  a 
marshal  of  the  United  States,  the  President  is  justified  in  assuming 
his  defense  on  behalf  of  the  United  States.  6 Id.  220,  500. 

The  various  acts  of  President  Lincoln,  in  calling  out  the  militia, 
organizing  an  army,  and  proclaiming  a blockade  of  the  Southern 
ports,  in  April,  1861,  for  the  suppression  of  the  rebellion,  were 
approved,  ratified,  and  confirmed  by  a joint  resolution  of  Congress, 
in  August,  1861.  The  President  was  the  judge  of  his  powers,  and 
the  court  is  bound  by  his  acts.  The  Prize  Cases,  2 Black,  666. 

Sec.  IV. — The  President,  Vice-President,  and  all  impeach- 
civil  officers  of  the  United  States,  shall  be  removed whomaybe 
from  office  on  impeachment  for,  and  conviction  0f, impeached  ? 
treason,  bribery,  or  other  high  crimes  and  mi s d e- 3io,  319-327. 
meanors. 

191.  “Civil  Officers.” — The  remedy  is  strictly  confined  to  27,  39,  40. 
civil  officers,  in  contradistinction  to  military.  Story’s  Const.  § 690, 

691. 

A senator  or  representative  in  Congress  is  not  such  civil  officer.  Who  are 
Blount’s  Trial,  22,  102;  Wh.  St.  Tr.  260,  316;  1 Story’s  Const. 

§ 793,  802.  See  2d  vol.  Senate  Journal  (1797),  3S3-393.  Nor  is  a ofllcers* 
territorial  judge,  not  being  a constitutional,  but  a legislative  office  p 
only.  3 Opin.  409.  But  United  States  circuit  and  district  judges  431. 
are  subject  to  impeachment.  Peck’s  Trial,  20,  and  Chase’s  Trial. 

No  previous  statute  is  necessary  to  authorize  an  impeachment  Where  must 
for  any  official  misconduct.  What  are,  and  what  are  not  high 
crimes  and  misdemeanors,  is  to  be  ascertained  by  a recurrence  to  ae  m lon3 ' 
the  rules  of  the  common  law.  1 Story’s  Const.  § 799.  Peck’s 
Trial,  499.  For  the  rules  of  proceedings  prescribed  in  cases  of 
impeachment,  see  Peck’s  Trial,  56-9. 

Blount  was  expelled  as  a senator  fora  “high  misdemeanor;” 
but  the  Senate  refused  to  consider  him  a “civil  officer,”  liable  to 
“impeachment.”  See  2 Senate  Journal,  pp.  383-397.  The  “high 
misdemeanor,”  was  not  in  the  violation  of  any  particular  statute.  What  is  an 

“ An  impeachment  before  the  Lords  by  the  Commons  in  G-reat 
Britain,  in  Parliament,  is  a prosecution  of  the  already  known  and  th^common 
established  law , and  has  been  frequently  put  in  practice,  being  a law  ? 

17 


186 


IMPEACHMENT,  CRIMES,  192-194.  [Art.  IT. 


27,  39, 177. 


What  must 
the  treason 
be  against? 
215. 


For  what 
must  it  be 
defined  ? 


Define  high 
crimes? 

27,  39,  194. 
212,223. 


Define  mis- 
demeanor ? 
27,  89,  192, 
193. 


presentment  to  the  most  high  and  supreme  court  of  criminal  juris- 
diction by  the  most  solemn  grand  inquest  of  the  whole  kingdom  ” 
(4  Blackstone,  259) ; apd  when  this  most  high  and  supreme  court 
of  criminal  jurisdiction  is  assembled  for  the  trial  of  a person  im- 
peached for  a violation  of  the  “already  known  and  established 
law,”  it  must  proceed  according  to  the  known  and  established  law, 
for  although  “ the  trial  must  vary  in  external  ceremony,  it  differs 
not  in  essentials  from  criminal  prosecutions  before  inferior  courts. 
The  same  rules  of  evidence,  the  same  legal  notions  of  crimes  and 
punishments  prevail.”  (Woodeson,  vol.  2,  611.)  Minority  report 
on  the  Impeachment  of  the  President,  62.  See  2 Chase’s  Trial,  137  ; 
Rawle’s  Const.  204. 

192.  “ Treason  and  Bribery.” — Treason  against  the  United 
States  shall  consist  only  in  levying  war  against  them  or  in  adher- 
ing to  their  enemies,  giving  them  aid  and  comfort.  Art.  3,  sec.  3. 
The  treason  must  be  against  the  United  States.  (Rawle’s  Const, 
ch.  22,  p.  215.)  Story’s  Const.  § 802. 

Bribery  is  the  offense  of  taking  any  undue  reward  by  a judge, 
juror,  or  other  person  concerned  in  the  administration  of  justice,  or 
by  a public  officer,  to  influence  his  behavior  in  his  office,  (4  Black. 
Com.  139,  and  Chitty’s  note;  3 Inst.  145  ; 4 Burr,  2494;  1 Russel 
on  Crimes,  154.)  Burrili’s  Law  Die.,  Bribery. 

For  this  definition  resort  must  necessarily  be  had  to  the  com- 
mon law.  Story’s  Const.  § 796;  Peck’s  Trial. 

No  other  crimes  than  bribery  and  treason  can  regularly  be 
inquired  into  as  ground  of  impeachment.  Rawle’s  Const,  ch.  22, 
p.  215.  But  neither  this  point,  nor  whether  any  other  than  a public 
officer  can  be  impeached,  has  been  authoritatively  settled.  Story’s 
Const.  § 802,  803. 

193.  “ High  Crimes.” — Crime  or  misdemeaner  is  an  act  com- 
mitted. or  omitted,  in  violation  of  a public  law,  either  forbidding  or 
commanding  it.  4 Bl.  Com.  5.  This  general  definition  compre- 
hends both  crimes  and  misdemeanors.  Id.  Crime,  in  a narrower 
sense,  is  distinguished  from  a misdemeanor,  as  being  an  offense  of 
a deeper  and  more  atrocious  dye,  and  usually  amounting  to  a 
felony.  4 Bl.  Com.  5 ; Burrill’s  Law  Die.,  Crime  ; Minority  report 
on  the  Impeachment  of  the  President,  61.  A breach  or  violation 
of  some  public  right  or  duty  to  a whole  community,  considered  as 
a community,  in  its  social  aggregate  capacity;  as  distinguished 
from  civil  injury.  4 Bl.  5. 

The  violation  of  a right,  when  considered  in  reference  to  the  evil 
tendency  of  such  violation,  as  regards  the  community  at  large. 
4 Stephen’s  Com.  55;  1 Id.  127,  128.  In  this  sense  it  includes  mis- 
demeanors. Burrill’s  Law  Die.,  Crime. 

194.  “Misdemeanor”  is  a less  heinous  species  of  crime;  an 
indictable  offense  not  amounting  to  felony.  4 Bl.  Com.  by  Chittv.  a 
note;  Burrill’s  Law  Die.,  Misdemeanor.  Properly  speaking,  crime 
and  misdemeanor  are  synonymous.  Id. ; 4 Steph.  Com.  57. 

In  general,  a misdemeanor  ia  used  in  contradistinction  to  felony, 
and  comprehends  all  indictable  offenses  which  do  not  amount  to 
felony ; as  perjury,  battery,  libels,  conspiracies,  attempts  and  so- 


Sec.  4.] 


IMPEACHMENT,  194. 


187 


licitations  to  commit  felonies,  &c.  4 Bl.  Com.  notes  5,  6;  Paschal’s  Misde- 
Annotated  Digest,  1658-1660.  * meanor. 

The  case  of  Judge  Humphries,  at  the  commencement  of  the  re- 
bellion, was  upon  charges  of  disloyal  acts  and  utterances,  some  of 
which  clearly  did  not  set  forth  offenses  indictable  by  statute  of  the 
United  States,  and  yet  upon  all  those  charges,  with  one  exception 
only,  he  was  convicted  and  removed.  Report  upon  the  Impeach- 
ment of  the  President,  52,  53.  The  minority  say  that  they 
amounted  to  treason,  because  he  advised  secession  by  Tennessee, 
after  the  ordinance  by  South  Carolina  and  the  levying  war  by  that 
State.  Id.  68. 

It  has  been  insisted  that  none  but  an  offense  against  a statute  of  Must  the 
the  United  States  is  impeachable.  (1  Chase’s  Trial,  9-18,  47,  48  ; offense  be 
4 Elliot’s  Debates,  262;  Rawle’s  Const,  ch.  29,  p.  273.)  Story’s 
Const.  § 796;  Minority  Report  on  the  Impeachment  of  the  Presi-  192.* 
dent,  61. 

Where  any  offense  is  punishable  by  an  act  of  Congress,  it  ought  327. 
to  be  impeachable.  Story’s  Const.  § 796. 

So  political  offenses,  impeachable  at  common  law,  may  be  so 
classified.  Id.  § 764,  768,  797,  798,  799;  Jefferson’s  Manual,  § 53, 
title,  Impeachment;  Blount’s  Trial,  29-31,  7 5— SO  ; Farrar,  § 494- 
496;  Curtis’  Com.  p.  360. 

No  one  of  the  cases  yet  tried  rests  upon  statutable  misdemean- 
ors. Story’s  Const.  § 799;  Report  upon  the  Impeachment  of  the 
President,  pp.  51-53. 

For  the  English  parliamentary  cases,  see  2 Woodeson’s  Law  Lect. 

40,  p.  602 ; Comyn’s  Dig.  Parliament  28-40;  Story’s  Const.  § 800. 

Mr.  Madison  said:  uHe  (the  President)  will  be  impeachable  by  What  were 
this  House,  before  the  Senate,  for  such  an  act  of  maladministra-  Madison’s 
tion : the  wanton  removal  of  meritorious  officers  would  subject vlevvs  • 
him  to  impeachment  and  removal  from  his  high  trust.”  (Lloyd’s  184-186. 
Debates,  503,  351,  450;  4 Elliot’s  Debates,  141.)  Farrar’s  Const. 

§ 495,  496. 

Whether  offenses  not  connected  with  office  are  impeachable  is 
still  unsettled.  Story’s  Const.  § 803-805. 

While  this  work  was  running  through  the  press,  a majority  of  the  State  the 
judiciary  committee  (on  the  25th  November,  1867)  made  a report 
to  the  House  of  Representatives  (in  response  to  a resolution  of  dent’s  im- 
the  House),  wherein  they  impeached  Andrew  Johnson,  President  peachment  ? 
of  the  United  States,  of  “High  crimes  and  misdemeanors.”  The 
report  was  signed  by  five  members ; the  minority,  including  the 
chairman,  dissented.  The  report  is  long,  and  the  evidence  is  volu- 
minous. 

The  committee  did  not  charge  the  violation  of  any  criminal  stat- 
ute. The  charges  are  sundry  usurpations  of  congressional  power ; 
willful  efforts  to  defeat  the  work  of  reconstruction  in  the  rebel 
States,  and  the  encouragement  of  those  who  were  engaged  in  the 
rebellion.  All  the  charges  hinge  upon  this  one  point.  But,  in 
the  specifications,  there  are  sundry  charges  of  the  violation  of 
statute  law : particularly  in  using  money  appropriated  for  other 
purposes  to  support  the  President’s  own  reconstruction  measures; 
in  levying  taxes  ; using  United  States  property ; restoring  aban- 
doned and  captured  property;  ordering  the  dispersal  of  the  Louisi- 


188 


IMPEACHMENT,  194. 


[Art.  II.,  III., 


327. 


State  the 
legal  argu- 
ment of  the 
minority  ? 

148. 


212. 


49. 


197. 

217. 


ana  Convention ; and  conspiracies  with  and  pardons  of  prominent 
rebels,  and  appointing  them  to  office.  See  Report,  1-47,  55-59. 

It  is  urged  by  the  minority  of  the  committee,  that  an  impeach- 
ment will  only  lie  for  offenses  which  are  indictable  ; that  the  house 
is  to  impeach  for  offenses,  not  to  create  them ; that  nothing  is 
penal  except  crimes  (13  Encyc.  Brit.  275);  that  Blackstone’s  defini- 
tion of  municipal  law  (1  Bl.  Com.  44)  is  to  be  observed;  that  no 
ex  post  facto  law  shall  be  passed ; that  the  definitions  of  crime 
(the  same  stated  in  this  note)  are  to  control ; that,  in  the  trial, 
the  Senate,  like  the  House  of  Lords,  is  a high  criminal  court,  gov- 
erned by  the  same  rules  of  law  and  evidence  as  other  criminal 
courts ; that  the  fact  that  the  party  can  be  convicted  in  another 
court  proves  this  (2  Chase’s  Trial,  137);  that  they  must  be  “ crimes ,” 
such  as  are  entitled  to  jury-trial  (Art.  III.  Sec.  2);  that  Blount’s 
trial  was  for  crimes  (but  against  what  criminal  law  is  not  shown) ; 
that  while  Pickering’s  offense  may  not  have  been  criminal,  the  plea 
of  insanity  was  ignored,  and  the  case  is  a disreputable  precedent ; 
that  Chase  must  have  been  acquitted  because  mere  misconduct 
as  a judge  was  not  a crime  or  misdemeanor.  In  Blount’s  case, 
several  of  the  charges  were  proved.  They  were;  “With  intending 
to  carry  into  effect  a hostile  expedition  in  favor  of  the  English  against 
the  Spanish  possessions  of  Louisiana  and  Florida;  with  attempta 
to  engage  the  Creek  and  Cherokee  Indians  in  the  same  expedition ; 
with  having  alienated  the  affections  of  the  said  Indians  from  Ben. 
Hawkins,  an  agent  of  the  United  States  among  the  Indians,  the 
better  to  answer  his  said  purposes ; with  having  seduced  James 
Cary,  an  interpreter  of  the  United  States  among  the  Indians,  for 
the  purpose  of  assisting  in  his  criminal  intentions  ; and  with  having 
attempted  to  diminish  the  confidence  of  the  Cherokee  Indians  in 
relation  to  the  boundary  line,  which  had  been  run  in  consequence 
of  the  treaty  which  had  been  held  between  the  United  States  and 
the  said  Indians.”  (1  Annals  of  5 Cong.  499,  919.)  That  the 
plea  to  the  jurisdiction  was  sustained,  on  the  ground  that  Blount 
was  not  a civil  officer.  (Id.  2318,  2319.)  That  while  Peck  was 
only  arraigned  for  misconduct,  or  official  misbehavior,  he  did  not 
demur  to  the  charge,  but  affirmed  the  justice  of  his  action;  that 
if  the  point,  that  a judge  may  be  tried  for  want  of  “good  beha- 
vior,” may  be  admitted,  it  cannot  apply  to  the  President,  whose 
tenure  is  for  four  years;  that  the  charges  against  Humphries  were 
of  treason,  because  they  were  words  and  acts  after  the  levying  of 
war  by  South  Carolina;  that  a fair  review  of  the  English  cases 
shows  that  Parliament  rested  all  cases  upon  some  indictable 
offense,  though  it  is  admitted  that  definitions  have  been  strained ; 
fifty-five  cases  given  bv  Hatsell  are  named  (p.  71);  where  the 
effort  to  explain  fails,  the  precedents  are  boldly  attacked;  the 
current  of  precedents  is  cited  to  show  that  the  federal  courts  can 
only  entertain  jurisdiction  of  crimes,  defined  and  made  penal  by 
Congress  (United  States  v.  Hudson,  7 Cr.  32;  United  States  v. 
Coolidge,  1 Wheat.  415 ; Ex  parte  Bollman  and  Swartwout,  4 Cr.  95  ; 
United  States  v.  Lancaster,  2 McLean,  33,  and  various  others, 
77,  78);  that  the  same  principle  should  apply  to  the  high  court  of 
impeachment ‘ that  “other  high  crimes  and  misdemeanors,”  means 
such  as  may  be  declared  by  the  law-making  power  of  the  United 


Sec.  4,  1.] 


JUDICIAL  POWER,  195. 


189 


States,  (Rawle’s  Const.  265) ; and  the  rest  of  the  report  is  principally  319-327. 
devoted  to  the  facts.  Report  upon#Impeachment  of  the  Presi- 
dent, 64-78.  The  whole  argument  is,  that  the  impeachment  must 
be  for  treason  within  the  constitutional  definition  ; for  bribery 
within  the  then  common-law  definition ; or  if  for  other  high 
crimes  and  misdemeanors,  then  they  must  be  such  as  are  created 
by  some  penal  enactment  of  Congress;  and  not  such  as  existed 
at,  and  were  impeachable  by,  the  common  law.  The  majority  of 
the  committee  assume  that  high  crimes  and  misdemeanors  may 
consist  in  oppressive,  unjust,  corrupt,  and  unauthorized  official 
misconduct,  although  not  indictable.  It  is  not  within  the  plan  of 
this  work  to  give  the  conclusions  of  the  author,  derived  from  the 
same  class  of  reading.  This  hour  of  the  country’s  history  is  not 
fortunate  for  a calm  investigation.  If  w'e  admit  the  conclusions  of 
the  minority  report,  the  difficulty  is  only  removed;  for  still  the 
question  would  remain — which  of  the  statute  offenses  would  be 
the  subject  of  impeachment?  Shall  they  be  piracy,  homicide, 
larceny,  forgery,  counterfeiting,  robbery,  defalcations,  or  any  one 
of  the  hundred  felonies  and  misdemeanors  spread  over  the 
statutes  ? And  shall  they  be  confined  to  offenses  committed  with- 
in the  criminal  jurisdiction  of  the  United  States  ? Such  only  are 
indictable.  Or  may  an  impeachment  be  for  an  infamous  crime 
against  the  laws  of  a foreign  country  ? « 

The  question  being  now  afloat  upon  the  sea  of  public  opinion, 
he  can  only  hope  that  future  writers  may  have  more  satisfactory 
guides.  The  house  by  a large  majority  sustained  the  minority 
report  and  refused  to  impeach,  but  still  it  can  hardly  be  regarded 
as  settling  the  principle,  that  nothing  is  impeachable  except  what 
is  indictable  as  an  offense  against  the  United  States. 

Article  III. 

Sec.  1. — The  judicial  power  of  the  United  States,  Define  the 
shall  be  vested  in  one  Supreme  Court,  and  iu  such  in- power? 
ferior  courts  as  the  Congress  may,  from  time  to  time, 
ordain  and  establish.  The  judges,  both  of  the  supreme  Tenure  of 
and  inferior  courts,  shall  hold  their  offices  during  oMcei94. 
good  behavior  ; and  shall,  at  stated  times,  receive  for 
their  services,  a compensation,  which  shall  not  be  Compensa- 
diminished  during  their  continuance  in  office. 

• 1!>5.  “The  Judicial  Power  of  the  United  States.” — Ju-  Define  judi- 
dicialis , judex , a judge,  or  judicium,  a judgment.  Burrill’s  Law  cial  Power  ? 
Die.,  Judicial.  It  is  the  power  to  hear  and  determine  controver-  8,  210,  218. 
sies  between  litigants,  upon  proper  cases  of  law  and  fact  presented 
for  adjudication. 

The  object  was  to  establish  a judiciary  for  the  United  States,  a what  was 
necessary  department,  which  did  not  exist  under  the  Con federa- the  object? 
tion.  (Federalist,  Nos.  22,  28,  80,  81 ; 2 Wilson’s  Law  Lect.  ch.  3, 
p.  201;  3 Elliot’s  Debates,  142,  143;  Osborn  v.  United  States 


190 


JUDICIAL  POWER,  195. 


[Art.  III., 


485-438. 


How  is  the 
power  con- 
tradistin- 
guished 
from  the 
law? 


238. 


On  what 
does  the 
jurisdiction 
depend  ? 
210,  211. 


Define 
w shall  be 
vested  ?” 
211. 


State  the 
divisions  of 
power  ? 

141,  165. 
199. 


275. 

109. 


What  is  the 
Supreme 
C-ourt  ? 

210,  211. 


Bank,  9 Wheat.  818,  819 ; 1 Kent’s  Com.  Lect.  14,  pp,  290-297.) 
Story’s  Const.  § 1574;  Mont§squieu’s  Spirit  of  Laws,  b.  11,  ch.  6; 
Rawle’s  Const,  ch..  21,  p.  199.  Chisholm  v.  Georgia,  Dali.  419, 
474.  For  the  great  necessity  and  duties  of  a national  judiciary,  also 
see  Cohens  v.  Virginia,  6 Wheat.  384-390 ; Id.  402-404,  415  ; Mar- 
bury  v.  Madison,  1 Cr.  137  ; Curtis’  Commentaries,  § 2.  With 
jurisdiction  to  the  full  extent  of  the  Constitution,  laws,  and  treaties 
of  the  United  States.  Osborn  v.  United  States  Bank,  9 Wheat. 
819;  Martin  v.  Hunter,  1 Wheat.  328. 

Judicial  power,  as  contradistinguished  from  the  power  of  the 
laws,  has  no  existence.  Courts  are  the  mere  instruments  of  the 
law  and  can  will  nothing.  Their  discretion  is  a mere  legal  dis- 
cretion. Judicial  power  is  never  exercised  for  the  purpose  of 
giving  effect  to  the  will  of  the  judge  ; but  always  of  the  legislature 
or  will  of  the  law.  Osborn  v.  Bank  of  United  States,  9 Wheat. 
818,  819,  866;  1 Kent’s  Com.  Lect.  14,  p.  277 ; 3 Story’s  Const. 
§ 1574,  note  3 of  3d  edition.  But  must  regard  the  Constitution  as 
paramount.  Marbury  v.  Madison,  1 Cr.  178;  1 Kent’s  Com.  Lect. 
20,  pp.  448,  460 ; Cohens  v.  Virginia,  6 Wheat.  414. 

The  jurisdiction  of  the  courts  of  the  United  States  depends  ex- 
clusively on  the  Constitution  and  laws  of  the  United  States. 
Livingston  v.  Jefferson,  1 Brock.  203 ; American  Insurance  Co.  v. 
Canter,  1 Pet*  511;  1 Curtis’  Com.  § 4:  United  States  v.  Drenner, 
Hemp.  320 ; United  States  v.  Alberti,  Id.  444.  The  federal  courts 
have  the  right  to  determine  their  own  jurisdiction.  (The  United 
States  v.  Peters,  5 Cr.  1.15 ; The  United  States  v.  Booth,  21  How. 
506.)  Freeman  v.  Howe,  24  How.  459-461. 

“ Shall  be  vested  ” is  mandatory  upon  the  legislature.  Its 
obligatory  force  is  so  imperative,  that  Congress  could  not,  without 
a violation  of  its  duty,  have  refused  to  carry  it  into  operation. 
Martin  v.  Hunter,  1 Wheat.  304,  328-337  ; 1 Kent’s  Com.  Lect.  14, 
pp.  290-293.  Congress  can  only  vest  the  power  in  courts  created 
by  itself.  Id. ; Story’s  Const.  § 1501-1503.  The  words  afford  an 
absolute  grant  of  judicial  power.  Id.;  Story’s  Const.  § 1594. 

All  legislative  power  shall  be  vested  in  a Congress ; all  executive 
power  in  a President ; all  judicial  power  shall  be  (not  may  be)  vested 
in  one  Supreme  Court  and  in  such  inferior  courts,  &c.  These  powers 
are  thus  absolutely  vested,  and  it  is  the  duty  of  Congress  to  vest 
the  whole  judicial  power.  (Martin  v.  Hunter,  1 Wheat.  304,  337.) 
Story’s  Const.  § 1590,  1591;  1 Kent’s  Cora.  Lect.  11,  p.  221. 
And  yet  it  cannot  be  denied  that  the  duty  of  Congress  to  vest  the 
whole  judicial  power,  by  proper  legislation,  is  one  thing;  and  the 
power  to  enforce  that  duty  through  any  other  department  of  the 
government,  or  to  exercise  it  until  distributed  by  legislation,  is 
another. — [Editor. 

“In  one  Supreme  Court.” — Supreme,  here  means  the  highest 
national  tribunal,  with  both  original  and  appellate  jurisdiction.  But 
this  can  onl}r  have  original  jurisdiction  in  two  classes  of  cases ; 
those  affecting  ambassadors,  &c.;  and  where  a State  is  a party. 
(Martin  v.  Hunter,  1 Wheat,  304,  337.)  Story’s  Const.  § 1593. 
Congress  cannot  vest  any  portion  of  the  power  in  State  courts, 
only  in  courts  established  by  itself. 


Sec.  l.j  INFERIOR  COURTS — JUDGES,  196,  197. 


191 


190.  “ Such  Inferior  Courts  ” — Congress,  having  the  power  state  the 
to  establish  inferior  courts,  must,  as  a necessary  consequence,  have  power  over 
the  right  to  define  their  respective  jurisdictions.  Sheldon  v.  Sill,  8 Courts  ? 
How.  448-9  ; Osborn  v.  United  States  Bank,  9 Wh.  188  ; Turner  194, 195. 
v.  Bank  of  North  America,  4 Dallas,  10;  McIntyre  v.  Wood,  7 Cr. 

506;  Kendall  v.  United  States,  12  Pet.  616;  Cary  v.  Curtis,  3 
How.  245. 

Therefore,  “Inferior  Courts  ” have  to  be  ordained  and  Why 
established  in  order  that  the  whole  “judicial  power”  may  be  inferio£ 
exercised.  (Martin  v.  Hunter,  3 Cr.  316.)  Story’s  Const.  § cour  3 
1593. 

Congress  has  the  exclusive  power  of  legislating  over  the  terri-  231, 232. 
tories,  and  consequently  the  Supreme  Court  has  appellate  jurisdic- 
tion over  the  courts  established  therein.  (Benner  v.  Porter,  9 
How.  235,  236.)  Freeborn  v.  Smith,  2 Wall.  173.  And  see  Ameri- 
can Insurance  Co.  v.  Canter,  1 Pet.  511;  Hunt  v.  Palao,  4 How. 

589 ; Benner  v.  Porter,  9 How.  244,  as  to  the  character  of  territo- 
rial courts. 

The  commissioners  of  the  Circuit  Courts  of  the  United  States  are  What  are 
officers  exercising  functions  of  justices  of  the  peace  under  the  commis- 
laws  of  the  commonwealth.  Sim’s  Case,  7 Cush.  731.  Congress  224* 225. 
might  appoint  justices,  without  commissioning  them  as  judges,  197’  198. 
during  good  behavior,  or  giving  them  fixed  salaries.  Id.  194. 

# 

197.  “ The  Judges  both  of  the  Supreme  and  Inferior  Define  good 
COURTS  SHALL  HOLD  THEIR  OFFICES  DURING  GOOD  BEHAVIOR.” — behavior* 
The  meaning  of  this  is  for  life  or  until  impeachment,  unless,  191-194. 
indeed,  there  be  power  to  abolish  circuits  and  districts,  and  thus  4() 
to  dispense  with  supernumerary  or  objectionable  incumbents. 

For  a full  note  of  the  State  Constitutions,  as  to  tenure,  see  1 
Kent’s  Com.  11th  edition,  p.  295,  note  (a.) 

The  territorial  judges  are  not  of  this  class,  as  they  only  hold 
four  years.  (American  Insurance  Co.  v.  Canter,  1 Pet.  546.) 

Benner  v.  Porter,  9 How.  244. 

Judges  for  a term  of  years. — Courts  in  which  the  judges  hold  What  are 
their  offices  for  a specific  number  of  years,  are  not  constitutional 
courts,  in  which  the  judicial  powers  conferred  by  the  Constitution  courts? 
can  be  deposited.  American  lus.  Co.  v.  Canter,  1 Pet.  511,  546. 

The  Supreme  Court  of  the  United  States  was  last  organized  Give  the 
as  follows  : — Allotment,  &c.,  of  the  Judges  of  the  bupreme  Court  of  allotment 
the  United  States,  as  made  April  8,  1867,  under  the  Acts  of  Con 
gress  of  July  23,  1866,  and  March  2,  1867. 


NAME  OF  THE  JUDGE, 
AND  STATE  WHENCE 
COMING. 


NUMBER  AND  TERRITORY 
OF  THE  CIRCUIT. 


DATE  AND  AUTHOR  OF 
THE  JUDGE’S  COMMIS- 
SION. 


r 

CHIEF-JUSTICE.  | 

Hon.  S.  P.  CHASE,  i 
Ohio. 

I 


FOURTH. 

Maryland,  West 
Virginia,  Virgin- 
ia, North  Caro- 
lina, and  South 
Carolina. 


1864. 

*"  December  6th. 
President  Lincoln. 


436. 


192 


JUDGES,  197. 


[Art  III. 


Give  a list 
of  the 
Judges? 

436. 


NAME  OF  THE  JUDGE, 
AND  STATE  WHENCE 
COMING. 


NUMBER  AND  TERRITORY 
OF  THE  CIRCUIT. 


DATE  ASL  AUTHOR  OF 
THE  JUDGE’S  COMMIS- 
SION. 


ASSOCIATES. 

Hon.  JAMES  M. 
WAYNE,  Georgia. 


f FIFTH. 

I Georgia,  Florida, 
^ Alabama,  Missis- 
^ sippi,  Louisiana, 


and  Texas. 


1835. 

f January  9tli. 

President  Jackson. 


{second. 

New  York,  Yer-  „ 
mont,  and  Con- 
necticut. 


1845. 

February  14th. 
President  Tyler. 


(third. 
Pennsylvania,  New  h 
Jersey,  and  Del- 
aware. 


1846. 

August  4th. 
President  Polk. 


Hon.  N.  CLIFFORD, 
Maine. 


first.  ^ 

Maine,  New  Hamp-  I 
H shire,  Massachu-  r 
setts,  and  Rhode 
w Island.  J 


1858. 

January  12th. 

Prest.  Buchanan. 


sixth. 

Hon.  NOAH  H.  J Ohio,  Michigan, 
S WAYNE,  Ohio.  | Kentucky,  and 
. Tennessee. 


1862. 

K January  24th. 
President  Lincoln. 


Hon.  S.  F.  MILLER, 
Iowa. 


Hon.  DAY.  DAYIS, 
Illinois. 


eighth. 

Minnesota,  Iowa, 
Missouri,  Kansas, 
and  Arkansas. 


1862. 

July  16th. 

President  Lincoln. 


seventh. 

Indiana,  Illinois, 
and  Wisconsin. 


1 1862. 

f December  8th. 

) President  Lincoln. 


Hon.  S.  J.  FIELD, 
California. 


< ninth.  1 1 863. 

-j  California,Oregon,  r March  10th. 

( and  Nevada.  ) President  Lincoln. 


Henry  Stanbery,  of  Kentucky,  Attorney-General ; Daniel 
Wesley  Middleton,  of  the  District  of  Columbia,  Clerk;  R.  C. 
Parsons,  of  Ohio,  Marshal. 

The  following  have  been  Chief- Justices  of  the  Supreme  Court  of 
the  United  States: — 


Name. 

Term  of 
Service. 

Born. 

Died. 

John  Jay,  N.  Y 

1789-1795  .. 

1745  .. 

1829 

John  Rutledge,  S.  C 

1795-1795  .. 



1800 

Oliver  Ellsworth,  Conn 

1796-1801  .. 

1752  .. 

1807 

John  Marshall,  Va 

1801-1835  .. 

1755  .. 

is  3 5 

Roger  B.  Taney,  Md 

1836-1864  .. 

1777  .. 

1864 

Salmon  P.  Chase,  0. 

1809  .. 

.... 

Sec.  1>]  JUDGES — COMPENSATION,  197,  198. 


193 


The  following  have  been.  Associate  Justices: — 


Name. 

Term  of 
Service. 

Born. 

Died. 

John  Rutledge,  S.  C 

.1789-1791 

.... 

1800 

William  Cushing,  Mass 

.1789-1810 

1733 

1810 

James  Wilson,  Penn 

.1789-1798 

1742 

1798 

John  Blair,  Ya 

.1789-1796 

1732 

1800 

Robert  H.  Harrison,  Md 

. 1789-17^9 

1745 

1790 

Jam6s  Iredell,  N.  C 

.1790-1799 

1750 

1799 

Thomas  Johnson,  Md 

.1791-1793 

1732 

1819 

William  Paterson,  N.  J 

.1793-1806 

1743 

1806 

Samuel  Chase,  Md 

.1796-1811 

1741 

1811 

Bushrod  Washington,  Ya 

.1798-1829 

1759 

1829 

Alfred  Moore,  N.  C 

.1799-1804 

1755 

1810 

WfLliam  Johnson,  S.  C 

.1804-1834 

.... 

1834 

Brockholst  Livingston,  N.  Y. . . 

.1806-1823 

1757 

1823 

Thomas  Todd,  Ky 

.1807-1826 

.... 

1826 

Joseph  Story,  Mass 

.1811-1845 

1779 

1845 

Gabriel  Duvall,  Md 

.1811-1835 

1751 

1844 

Smith  Thompson,  N.  Y 

.1823-1845 

1767 

1845 

Robert  Trimble.  Ky 

.1826-1829 

• • • • 

1829 

John  McLean,  Ohio 

.1829-1861 

1785 

1861 

Henry  Baldwin,  Penn 

.1830-1840 

1779 

1846 

James  M.  Wayne,  Ga 

.1835-1867 

1786 

1867 

Philip  P.  Barbour,  Ya 

.1836-1841 

.... 

1841 

John  Catron,  Tenn 

.1837-1865 

1786 

1865 

John  McKinley,  Ala 

.1837-1852 

. . . . 

1852 

Peter  Y.  Daniel,  Ya 

.1841-1860 

1785 

1860 

Samuel  Nelson,  N.  Y 

.1845- 

1792 

• • • u 

Levi  Woodbury,  N.  H 

.1845-1851 

1790 

1851 

Robert  C.  Grier,  Penn 

.1846- 

1794 

Benjamin  R.  Curtis,  Mas3 

.1851-1857 

1809 

James  A.  Campbell,  Ala 

,.1853-1861 

1802 

Nathan  Clifford,  Me 

Noah  H.  S wayne,  Ohio 

.1858- 

1803 

.1862- 

1805 

Samuel  F.  Miller,  Iowa 

.1862- 

1816 

David  Davis,  Illinois 

.1862- 

1815 

Stephen  J.  Field,  California 

.1863- 

1817 

Efforts  were  made  at  the  Supreme  Court  clerk’s  office,  and  at  the 
State  Department,  to  obtain  more  accurate  information  as  to  the 
respective  dates  of  service,  but  without  success. 


19§.  The  “Compensation”  of  Judges  is  at  present  as  fob  state  the 
lows:  Chief- Justice,  six  thousand  five  hundred  dollars;  Associate  present 
Justices,  six  thousand  dollars  each.  10  Stat.  655  ; Brightly’s  ^JJJ?en8a 
Dig.  819.  The  District  Judges’  salaries  vary  from  three  thousand 
five  hundred  dollars  to  five  thousand  five  hundred  dollars.  436. 

This  compensation  prohibits  the  imposition  of  a tax  upon  a Can  it  be 
judge:s  salary.  Commonwealth  v.  Mann,  5 W.  & S.  415.  Cougress  taxed? 
may  give  the  Circuit  Court  original  jurisdiction  in  any  case  to 
which  tho  appellate  jurisdiction  extends.  (Osborn  v.  The  Bank  of 
the  United  States,  9 Wh.  821.)  Jones  v.  Seward,  41  Barb.  272-3. 


194 


To  what 
does  the 
judicial 
power 
extend  ? 

199-200. 


439-455. 


Distinguish 
the  judicial 
from  legisla- 
tiv%power? 
14,  71,  138, 
165,  211. 

439,  440. 


27,  39,  40. 


283. 


JUDICIAL  POWERS,  199.  [Art.  III.,  Sec.  2, 

And  see  United  States  v.  Bevans,  3 Wheat.  336.  When 
the  Act  of  Congress  directs  the  transfer  of  the  case,  we 
have  nothing  to  do  with  the  validity  of  the  law  as  a defense  to  the 
action.  (Story’s  Const,  ch.  38,  § 903,  906,  et  seq. ; Martin  v. 
Hunter,  1 Wh.  304;  Cohens  v.  Virginia,  6 Wh.  364;  Osborn 
v.  The  Bank  of  the  United  States,  9 Wh.  738.)  Jones  v.  Seward, 
41  Barb.  273.  As  to  what  cases  will  be  transferred  from  the  State 
to  the  federal  court,  see  1 Brightly’s  Dig.  Laws  U.  S.  p.  128. 
§ 19,  notes  d , e , g , and  h;  Smith  v.  Rines,  2 Sumn.  338;  Wilson 
v.  Blodget,  4 McLean,  363  ; Hubbard  v.  The  Northern  R.  R.  Co.  25 
Vt.  715,  719;  Welch  v.  Tenent,  4 Cal.  203;  Ladd  v.  Tudor,  3 
W.  & M.  325.  No  suit  can  be  removed  in  which  a State  is  a 
party.  New  Jersey  v.  Babcock,  4 Wash.  C.  C.  344.  After  the 
proper  steps  for  removal,  any  subsequent  proceedings  in  the  State 
courts  are  illegal.  (Jordon  v.  Longest,  16  Pet.  97 ; 1 Kent’s 
Com.  295. 

Sec.  II. — [l.]  The  judicial  power  shall  extend  to  all 
cases,  in  law  aud  equity,  arising  under  this  Constitu- 
tion, the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made  under  their  authority  ; to  all 
cases  affecting  ambassadors,  other  public  ministers, 
and  consuls  ; to  all  cases  of  admiralty  and  maritime 
jurisdiction ; to  controversies  to  which  the  United 
States  shall  be  a party  ; to  controversies  between  two 
or  more  States;  between  a State  and  citizens  of 
another  State  ; between  citizens  of  different  States ; 
between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States,  and  between  a State, 
or  the  citizens  thereof,  and  foreign  States,  citizens 
or  subjects. 

199.  Judicial  Power,  as  contradistinguished  from  legislative 
power  and  executive  power,  is  the  power  to  hear  and  determine 
all  the  cases  of  law  and  fact,  which  arise  between  the  government 
and  parties,  or  between  parties,  under  this  Constitution,  the  law 
of  nations,  and  the  laws  and  treaties  of  the  United  States,  which 
shall  be  legally  brought  within  the  cognizance  and  jurisdiction  of 
any  of  the  courts  or  judicial  tribunals  established  under  the  Consti- 
tution. It  was  intended  to  bo  a separate  department  of  the 
governmeut,  possessing  all  the  “judicial  power  ” of  the  national 
government  except  upon  the  single  jurisdiction  of  impeachment. 
Not  a power  to  control  the  other  departments  of  the  government 
in  their  official  actions,  but  to  act  independently  of  them  under  the 
Constitution  and  laws. 

But  the  judicial  power  does  not  extend  to  all  questions  which 
arise  under  the  Constitution,  laws,  and  treaties,  because  many  of 


Cl.  1.] 


JUDICIAL  POWERS,  199. 


195 


those  are  political,  and  have  to  be  solved  by  other  departments  of 
the  government.  Thus : — 

“ Treaties.” — Where  the  title  to  property  depended  on  the  Has  the 
question,  whether  the  land  was  within  a cession  by  treaty  to  the  j^con  ^ 
United  States,  after  our  government,  legislative  and  executive,  8truction  of 
had  claimed  jurisdiction  over  it,  the  courts  must  consider  that  all  treaties, 
question  as  a political  one,  the  decision  of  which  having  been  made  what  is 
in  this  manner,  they  must  conform  to  it.  (Foster  v.  Neilson,  2 Pet.  ' 

309;  United  States  v.  Arredondo,  6 Pet.  711,  712;  Garcia  v. 

Leo,  12  Pet.  520,  521 ; Williamson  v.  Suffolk  Ins.  Co.,  13  Pot.  441,  441. 

920.)  Luther  v.  Borden,  7 How.  56. 

So  the  protection  of  the  Indians  in  their  possessions  seems  to  be  As  to  the 
a political  question.  (Cherokee  Nation  v.  Georgia,  5 Pet.  20.)  Id. 

So  as  to  State  boundaries,  unless  agreed  to  be  settled,  as  a judicial  stateboun- 
question.  (Rhode  Island  v.  Massachusetts.  12  Pet.  736,  738  ; daries? 
Garcia  v.  Lee.  Id.  520.)  Id.  And  they  have  agreed  upon  this  195- 

court  to  settle  such  questions.  Rhode  Island  v.  Massachusetts,  12  2^4. 

Pet.  737.  And  so  of  foreign  treaties,  as  to  confiscations.  (Barclay 
v.  Russel,  3 Yes.  424,  434.)  Id.  And  generally  as  to  political 
treaties.  (Carnatic  v.  The  East  India  Company,  2 Yes.  jr.  56.) 

Luther  v.  Borden,  7 How.  56.  So  as  to  which  must  be  regarded 
as  the  rightful  government  abroad  between  two  contending  parties,  As  to  revo- 
is  never  settled  by  the  judiciary,  but  is  left  to  the  general  govern-  lutions? 
ment.  (The  Cherokee  Nation  v.  Georgia,  5 Pet.  50 ; Williams  v. 

Suffolk  Ins.  Co.  13  Pet.  419;  Rose  v.  Himley,  4 Cr.  241;  United 
States  v.  Palmer,  3 Wheat.  634;  Gilston  v.  Hoyt,  Id.  246;  The 
Divina  Pastora,  4 Wheat.  64.)  Luther  v.  Borden,  7 How.  56,  57. 

The  same  rule  has  been  applied  in  a contest  as  to  which  is  the  233, 235. 
true  Constitution,  between  two,  or  which  possesses  the  true  legis- 
lative power  in  one  of  our  own  States.  (Scott  v.  Jones,  5 How. 

374.)  Luther  v.  Borden,  7 How.  57. 

Congress  is  the  legislative  department  of  the  government ; the  lio. 
President  is  the  executive  department.  Neither  can  be  restrained  195. 
in  its  action  by  the  judicial  department;  though  the  acts  of  both, 
when  performed,  are,  in  proper  cases,  subject  to  its  cognizance. 

Mississippi  v.  Johnson,  4 Wall.  500. 

A case  arises,  within  the  meaning  of  the  Constitution,  Define  a 
whenever  any  question  respecting  the  Constitution,  laws,  or  treaties  oase? 
of  the  United  States,  has  assumed  such  a form,  that  the  judicial  j^g1  gfj* 
power  is  capable  of  acting  on  it.  Osborn  v.  United  States  Bank,  9 263’  264. . 
Wh.  819;  Jones  v.  Seward,  41  Barb.  272;  Curtis’  Com.  § 7;  Ex  201. 
parte  Milligan,  4 Wallace,  112,  114.  Law,  in  this  article,  and 
Common  Law.  in  the  seventh  amendment,  mean  the  same  thing; 
that  is,  not  merely  suits  which  the  common  law  recognized  among 
its  old  and  settled  proceedings,  but  suits  in  which  legal  rights  were 
to  be  ascertained  and  determined  in  contradistinction  to  those 
where  equitable  rights  are  administered.  (Parsons  v.  Bedford,  3 
Pet.  447.)  Fenn  v.  Holmes,  21  How.  486  (cites  Strother  v.  Lucas, 

6 Pet.  768;  Parish  v.  Ellis,  16  Pet.  453-4;  and  Bennett  v.  Butter- 
worth,  11  How.  669).  And  see  Sheirburne  v.  He  Cordova,  24 
How.  423.  Or,  where  the  proceeding  is  in  the  admiralty.  Parsons 
v.  Bedford,  3 Pet.  447  ; Robinson  v.  Campbell,  3 Wh.  212.  The 


196 


JUDICIAL  CASES,  200,  201.  [Art.  III.,  Sec.  2, 


A case.  action  of  ejectment,  or  trespass  to  try  title,  cannot  be  supported  on 
the  common-law  side  of  the  United  States  Court,  upon  the  inchoate 
titles  recognized  by  the  State  statutes.  Fenn  v.  Holmes,  21  How. 
481 ; Hooper  v.  Scheimer,  23  Id.  249 ; Sheirburne  v.  De  Cordova, 
24  Id.  423.  N 

This  class  of  cases  is  without  reference  to  who  are  the  parties. 
Curtis’  Com.  § 3-17.  See  Van  Ness  v.  Packard,  2 Pet.  137,  144; 
'Wheaton  v.  Peters,  8 Pet.  591 ; Terrett  v.  Taylor,  9 Cr.  43  ; Town 
of  Pawlet  v.  Clarke,  Id.  292. 

When  con-  But  a “ case  ” can  only  be  considered  when  the  subject  is  sub- 
sidered  ? mitted  to  it  by  a party  who  asserts  his  rights  in  the  form  prescribed 
by  law.  (Osborn  v.  Bank  of  the  United  States,  9 Wh.  819.)  Curtis’ 
Com.  § 7.  And  see  Robinson  v.  Campbell,  2 Wh.  212,  221,  223; 
Parsons  v.  Bedford,  3 Pet.  433,  446,  447.  That  is,  there  must  bo  a 
judicial  proceeding.  Curtis’  Com.  § 10,  11;  Osborn  v.  Bank  of 
United  States,  9 Wheat.  738,  819,  821. 

The  record  must  show  that  the  Constitution  or  some  law  or 
treaty  was  drawn  in  question.  (Lawter  v.  Walker,  12  How.  149; 
Mills  v.  Brown,  16  Pet.  525.)  Railroad  Co.  v.  Rock,  4 Wall.  180. 

And  under  the  25th  section  of  the  judiciary  act,  the  decision  must 
be  against  the  validity  of  the  act,  treaty,  or  Constitution;  Aot  in 
favor  of  it.  Ryan  v.  Thomas,  4 Wall.,  604. 

Define  a 200.  By  “cases  in  equity,”  are  to  be  understood  suits  in 
case  in  which  relief  is  sought  according  to  the  principles  and  practice  of  the 

e(lUii99  equity  jurisdiction  as  established  in  English  jurisprudence.  Robin- 

son v.  Campbell,  3 Wh.  222-3;  United  States  v.  Howland,  4 Id. 
108 ; Lanman  v.  Clark,  2 McLean,  570-1 ; Lanman  v.  Clark,  4 Id. 
18;  Gordon  v.  Hobart,  2 Sumn.  401;  Pratt  v.  Northam,  5 Mas. 
95;  Cropper  v.  Coburn,  2 Curtis’  C.  C.  465.  And  see  1 Curtis’ 
What  is  the  Cora.  § 7-9,  19a-30.  The  true  test  of  equity  jurisdiction  is, 
true  test  of  whether  there  is  a plain,  adequate,  and  complete  remedy  at  law  in 
dicdon^UriS'  the  same  courts.  United  States  v.  Howland,  4 Wheat.  108; 

Boyce’s  Executors  v.  Grundy,  3 Pet.  210,  215  ; Gould  v.  Gould,  3 
Story  R.  516,  536;  Gaines  v.  Chew,  2 How.  619,  645;  Williams  v. 
Benedict,  8 How.  107  ; Curtis’  Com.  § 23-38.  Not  according  to 
the  practice  of  the  State  courts,  but  the  distinctions  in  England. 
Robinson  v.  Campbell,  3 Wheat.  222,  223. 


When  does 
a case 
* arise  ? 

to  y 


iddCt 

10  (t* 

If- fb  0 


08. 


259. 


What  is 
A case  ? 


201  - A case  is  said  to  “arise  ” under  the  Constitution  or  laws 
of  the  United  States,  whenever  its  correct  decision  depends  on  the 
construction  of  either.  Cohens  v.  Virginia,  6 Wh.  379.  A bill  in 
equity  to  enforce  a specific  performance  of  a contract  to  convey  a 
patent,  is  not  a “ case  arising  under  the  laws  of  the  United  States  ” 
as  to  patents,  so  as  alone  to  give  jurisdiction  to  its  Courts.  Nes- 
mith v.  Calvert,  1 W.  & M.  34.  A case  in  admiralty,  is  not  a case 
arising  under  the  Constitution,  but  the  jurisdiction  is  as  old  as 
admiralty  itself.  The  Amer.  Ins.  Co.  v.  Canter,  1 Pet.  545.  This 
article  is  reconcilable  with  the  5th  amendment,  and  the  several  ju- 
diciary acts  on  the  subject  of  trial  by  jury.  Parsons  v.  Bedford,  3 
Pet.  444;  Story’s  Const.  § 1645;  Chisholm  v.  Georgia,  2 Dali.  419, 
433,  437  ; S.  C.,  635,  640,  642. 

A “ case  ” is  a controversy  between  parties  which  has  taken  a 


Cl.  1.]  AMBASSADORS — ADMIRALTY,  202,  203. 


197 


shape  for  judicial  decision.  Marshall’s  speech,  5 Wheat.  App.  1 6,  199. 

17  ; Osborn  v.  Bank  of  United  States,  9 Wheat.  819.  A case  is  a suit 
in  law  or  equity,  instituted  according  to  a regular  course  of  judicial  121-p.  124. 
proceedings ; and  when  it  involves  any  question  arising  under  the 
Constitution,  treaties,  or  laws  of  the  United  States,  it  is  within  the 
judicial  power  confided  to  the  Union.  (See  1 Tuck.  Black.  Com. 

418-420  ; Madison’s  Virginia  resolutions  and  report,  January,  1800, 
p.  28;  Marbury  v.  Madison,  1 Cr.  137,  173,  174;  Owing  v.  Nor- 
wood, 5 Cr.  344;  2 Elliot’s  Debates,  418,  419;  Martin  v.  Hunter, 

1 Wheat.  304;  Cohens  v.  Virginia,  6 Wheat.  264,  378-392.) 

Story’s  Const.  § 1647-1656.  It  consists  of  the  right  of  the  one 
party  as  well  as  the  other.  Cohens  v.  Virginia,  6 Wheat.  379. 

202.  “In  all  cases  affecting  Ambassadors,  other  public  How  are 
Ministers  and  Consuls.” — These  classes  are  usually  distinguished  foreign 

in  diplomacy  : — 1.  Ambassadors,  who  are  the  highest  order,  who  are  tfves  classi- 
considered  as  personally  representing  their  sovereigns ; 2.  Envoys  fied  ? 
Extraordinary  and  Ministers  Plenipotentiary  ; 3.  Ministers  180, 181, 210. 
Resident,  and  Ministers  Charge  d’affaires.  Mere  charges 
d’affaires  are  deemed  of  still  lower  rank.  Dr.  Liebers  Encyc.  Am.  444,445. 
Art.  Ministers,  Foreign:  Vattel,  B.  4 chap.  6,  § 71-74.  And 
see  Schooner  Exchange  v.  McFadden,  7 Cr.  116,  138;  Story’s 
Const.  § 1658,  3d  ed.  494,  note  1.  Whatever  their  rank  and  grade 
public  ministers  of  every  class  are  the  immediate  representatives 
of  their  sovereigns.  Id. 

The  federal  courts  have  jurisdiction  of  all  suits  “ affecting  ” Is  it  neces- 
public  ministers,  although  they  may  not  be  parties  to  the  record. they 
Osborn  v.  United  States  Bank,  9 Wh.  854-5.  See  United  States  v.  parties  to 
Ortega,  11  Wh.  467  ; United  States  v.  Ravara,  2 Dali;  297.  S.  C.,  4 the  record? 
Wash.  C.  C.  531.  The  recognition  of  the  executive  of  the  United 
States  is  conclusive  as  to  the  public  character  of  the  party.  Dupont 
v.  Pichon,  4 Dali.  321  ; United  States  v.  Ortega,  4 Wash.  C.  C. 

531 ; Curtis’  Com.  § 31-35  ; Story’s  Const.  § 1660-1662,  notSs  to 
3d  ed. 

203.  “ Admiralty  and  Maritime  Jurisdiction.” — The  cases  what  is 

are: — 1.  Captures  made  jure  belli  upon  certain  waters,  and  all  admiralty 
questions  of  prize  and  other  incidents  arising  therefrom ; 2.  ti^e^uris- 

Crimes  and  offenses  against  the  laws  of  the  United  States  com- diction? 
mitted  upon  the  same  waters ; 3.  Civil  acts,  torts,  and  injuries  no-116, 
committed  upon  the  same  waters  not  under  claim  or  color  of  exer- 
cising the  rights  of  war,  as  assaults  and  personal  injuries;  col-  446. 

lisions  of  ships,  illegal  seizures,  or  depredations  upon  property ; 

illegal  dispossession  of  ships,  seizures  for  breaches  of  revenue 
laws,  and  salvage  services.  Curtis’  Com.  § 37  ; and  see  same, 

§ 38-52;  Marshall’s  Speech, *5  Wheat.  App.  16;  Martin  v.  Hun- 
ter, 1 Wheat.  335;  Story’s  Const.  § 1666,  1669,  3d  ed.,  note  1; 

Abbott  on  Shipping,  P.  2,  chap.  4,  pp.  132-138,  and  notes  to 
American  editions ; 1 Kent’s  Com.  Lect.  XVII.,  pp.  342-352,  and 
notes.  But  the  torts  must  be  upon  the  navigable  waters,  and  not 
partly  on  land.  (Thomas  v.  Lane,  2 Sumner,  9 ; The  Huntress, 

Davies,  85;  United  States  v.  McGill,  1 Wash.  C.  C.  463;  s.  c.,  4 
Dali.  346 ; Plumer  v Webb,  4 Mas.  383,  384.)  The  Plymouth,  3 
Wall.  333,  334. 


198 


ADMIRALTY,  203. 


Art.  III.,  Sec.  2., 


How  far 
does  the 
jurisdiction 
extend? 


Why  was 
maritime 
used  ? 


What  was 
the  extent 
and  division 
o:'  admiralty 
jurisdic- 
tion ? 


Enumerate 
some  of  the 
cast- s ? 


The  Admiralty  clause  embraces  what  was  known  and  under- 
stood in  the  United  States,  as  the  admiralty  and  maritime  juris- 
diction, at  the  time  when  the  Constitution  was  adopted.  Genesee 
Chief  y.  Fitzhugh,  12  How.  443;  New  Jersey  Steam  Navigation 
Co.  v.  Merchants’  Bank,  6 Id.  244;  Waring  v.  Clark,  8 Id.  441; 
Tunno  v.  The  Betsina,  5 Am.  L.  R.,  408  ; The  Huntress,  Davies, 
83.  And  also  extends  the  power  so  as  to  cover  every  expansion 
of  jurisdiction.  Waring  v.  Clarke,  5 How.  458. 

The  word  “ maritime  ” was  added  to  guard  against  any  narrow 
interpretation  of  the  preceding  word  “admiralty.”  Story’s  Const. 
§ 1666.  In  Hine  v.  Trevor,  4 Wall.  561-569,  Mr.  Justice  Miller 
reviewed  the  steamboat  Thomas  Jefferson,  10  Wh.  428;  The 
steamboat  Orleans,  11  Pet.  175;  Warring  v.  Clark,  8 How.  441; 
The  Genesee  Chief,  12  How.  457  (which  overruled  the  first  two); 
Fritz  v.  Bull,  12  How;  The  Moses  Taylor,  4 Wall.  411;  The 
statute  of  1845,  5 St.  726;  of  1789,  1 St.  77,  and  deduced  the  fol- 
lowing rules  : — 

1.  The  admiralty  jurisdiction  is  not  limited  to  tide  water,  but 
covers  the  entire  navigable  waters  of  the  United  States ; 2.  The 
original  jurisdiction  in  admiralty,  exercised  by  the  district  courts, 
by  virtue  of  the  act  of  1789,  is  exclusive,  not  only  of  the  federal 
courts,  but  of  the  State  courts  also;  3.  The  jurisdiction  of  admi- 
ralty causes  arising  on  the  interior  waters  of  the  United  States, 
other  than  the  lakes  and  their  connecting  waters,  is  conferred  by 
the  Act  of  September  24th,  1789;  4.  The  admiralty  jurisdiction 
exercised  by  the  same  courts,  on  the  lakes,  and  the  waters  con- 
necting those  lakes,  is  governed  by  the  Act  of  3d  February,  1845; 
5.  The  Acts  of  the  State  legislatures,  which  virtually  give  admiralty 
remedies  on  the  navigable  rivers,  are  unconstitutional  and  void. 
4 Wall.  569. 

Since  the  case  of  the  Genesee  Chief  (12  How.  457),  navigable 
waters  may  be  substituted  for  tide-w’aters.  The  Plymouth,  3 
Wall.  34. 

The  jurisdiction  of  the  admiralty  courts  in  this  country,  at  the 
time  of  the  Revolution,  and  for  a century  before,  was  more  exten- 
sive than  the  high  court  of  admiralty  in  England.  Paschal’s  An- 
notated Digest,  note  89  ; The  Genesee  Chief,  12  How.  455.  This 
jurisdiction  extends  to  the  navigable  lakes  and  rivers  of  the 
United  States,  without  regard  to  the  ebb  and  flow  of  the  tides  of 
the  ocean.  Genesee  Chief  v.  Fitzhugh,  12  How.  443.  It  em- 
braces all  maritime  contracts,  wheresoever  the  same  may  be  made 
or  executed,  and  whatever  may  be  the  form  of  the  stipulations ; 
and  also  all  torts  and  injuries  committed  upon  waters  within  its 
jurisdiction.  De  Lovio  v.  Boit,  2 Gall.  398  ; Gloucester  Ins.  Co.  v. 
Younger,  2 Curt.  C.  C.  322 : Philadelphia  A Havre  de  Grace  Tow- 
boat Co.  v.  Philadelphia,  Wilmington  A Baltimore  Railroad  Co.  5 
Am.  L.  R.  2S0.  All  crimes  and  offenses  against  the  laws  of  the 
United  States.  Corfield  v.  Coryell,  4 Wash.  C.  C.  371;  United 
States  v.  Bevans,  3 Wh.  336.  And  all  cases  of  seizures  for 
breaches  of  the  revenue  laws,  and  those  made  in  the  exercise  of 
the  rights  of  war.  The  Vengeance,  3 Dali.  297;  The  Sallv,  2 Cr. 
406;  The  Now  Jersey  Steam  Navigation  Co.  v.  Merchants’  Bank,  6 
How.  344.  Another  class  of  cases,  in  which  jurisdiction  has 


01.  1.]  UNITED  STATES  AND  STATES,  204,  205. 


199 


always  been  exercised  by  the  admiralty  courts  in  this  country,  but  Increase  of 
which  is  denied  in  England,  are  suits  by  ship-carpenters  and  jurisdiction, 
material-men,  -for  repairs  and  necessaries  made  and  furnished  to 
ships,  whether  foreign,  or  in  the  port  of  a State  to  which  they  do 
not  belong,  or  in  the  home  port,  if  the  municipal  laws  give  a lien 
for  the  work  and  materials.  Gardner  v.  The  New  Jersey,  1 Pet. 

Adm.  227  ; Stevens  v.  The  Sandwich,  Id.  233,  n. ; Zano  v.  The 
Brig  President,  4 Wash.  C.  C.  453  ; The  Ship  Robert  Fulton,  1 
Paine,  620  ; Davis  v.  A New  Brig,  Gilp.  473  ; The  General  Smith, 

4 Wh.  438;  Wick  v.  The  Samuel  Strong,  6 McLean,  590;  Curtis’ 

Com.  § 36-52. 

The  jurisdiction  extends  to  the  seizure  of  cotton  upon  rivers  in  117, 118. 
the  States  in  rebellion.  Mrs.  Alexander’s  Cotton,  2 Wall.  419. 

But  cotton  seized  upon  land  could  not  be  the  subject  of  lawful 
prize,  although  it  was  subject  to  capture,  notwithstanding  it  was 
private  property.  Id. 

204.  “Controversies  to  which  the  United  States  shall  be  Where  is 
A Party.” — 1.  The  jurisdiction  is  not  conferred  upon  any  particular 

court ; Congress  must  therefore  designate  the  tribunal ; 2.  Cogni-  ^hen  the 
zance  is  not  given  of  all  controversies,  but  only  of  some  ; 3.  “ Con-  United 
troversies  ” seem  to  embrace  only  civil  suits.  Cohens  v.  Vir-  States  is  a 
ginia,  6 Wheat.  264,  411,  412;  Story’s  Const.  § 1674-1681;  Curtis’  party? 

Com.  § 66,  57. 

The  United  States  can  only  be  sued  in  cases  where  it  has  con-  When  can 
sented  to  be  sued  by  act  of  Congress.  Curtis’  Com.  § 57  ; Story’s  t,be  United 
Const.  § 1677,  1678.  As  in  suits  for  the  confirmation  of  land  be 
grants  and  in  the  Court  of  Claims.  Curtis’  Com.  § 100-102. 

A suit  against  the  President  to  prevent  the  enforcement  of  the 
reconstruction  laws,  was  held  to  be  a suit  against  the  executive 
of  the  United  States,  and  dismissed  for  want  of  jurisdiction.  Mis- 
sissippi v.  Johnson,  4 Wall.  498.  Georgia  v.  Stanton,  6 Wall.  000. 

205.  “ To  Controversies  between  two  or  more  States.” 

— This  means  States  of  the  Union. 

This  clause  about  suits  between  States,  includes  a suit  brought  What  may 
by  one  State  against  another,  to  determine  a question  of  disputed  included 
boundary.  Rhode  Island  v.  Massachusetts,  12  Pet.  657  ; Alabama 
v.  Georgia,  23  How.  510.  And  only  applies  to  those  States  that  state? 
are  members  of  the  Union,  and  to  public  bodies  owing  obedience  s,  9,  223- 
and  conformity  to  its  Constitution  and  laws.  Scott  v.  Jones,  5 228. 

How.  377.  And  a State  is  within  the  operation  of  this  clause  only  447. 
when  it  is  a party  to  the  record,  as  a plaintiff  or  defendant,  in  its 
political  capacity.  Osborn  v.  United  States  Bank,  9 Wheat.  738; 

1 Curtis’  Com.  § 59,  63.  The  Cherokee  nation  is  not  a State,  within 
the  meaning  of  the  Constitution,  either  foreign  or  domestic — nor 
had  it  the  right  to  sue  Georgia  before  the  Supreme  Court  of  the 
United  States.  The  Cherokee  Nation  v.  Georgia,  5 Pet.  1,  16- 
20.  t 

As  early  as  1792,  this  court  exercised  original  jurisdiction,  with- 
out any  further  legislation  than  the  act  of  1789.  (Brailsford  v. 

Georgia,  2 Dali  402,  415;  Oswald  v.  Georgia,  Dali;  Chisholm 
v.  Georgia,  2 Dali.  419,  478;  New  Jersey  v.  New  York,  5 Pet. 


200 


STATES  AND  CITIZENS,  205 a.  [Art.  TIL,  Sec.  2, 


Upon  whom  284;  Grayson  v.  Virginia,  3 Dali.  320.)  These  cases  settle 
Srocesstbe  Proces3  should  be  served  upon  the  chief  executive  and 

served5?  ° attorney-general  of  the  State.  Kentucky  v.  Ohio,  24  How.  96-7. 

Where  the  governor  sues  or  is  sued,  in  his  official  capacity,  if  is 
a suit  by  or  against  the  State.  Id.  97,  99 ; Governor  of  Georgia 
v.  Madrazo.  1 Pet.  110.  A mandamus  is  an  ordinary  process  to 
which  a State  is  entitled,  where  it  is  applicable.  (Kendall  v.  The 
United  States,  12  Pet.  615 ; Kendall  v.  Stokes,  3 How.  100.)  Ken- 
tucky v.  Ohio,  24  How.  97-8. 

For  the  necessity  of  this  jurisdiction,  see  Federalist,  No.  80;  Kent's 
Com.  Lect.  14;  Chisholm  v.  Georgia,  2 Dali.  437-445;  Sergeant’s 
Const.  Introduction,  11-16;  New  York  v.  Connecticut,  4 Dali.  3; 
Fowler  v.  Lindsay,  3 DalL  411 ; 3 Elliot’s  Debates,  281 ; 2 Elliot’s 
Debates.  418;  Penn  v.  Lord  Baltimore,  *1  Vesev,  444;  Story’s 
Const.  § 80,  489,  1679-1681;  1 Chaim.  Annals,  480-490. 

The  jurisdiction  is  a necessity  to  prevent  a resort  to  the  sword. 
Story’s  Const.  § 1631.  See  Ableman  v.  Booth,  21  How.  606; 
Curtis'  Com.  60-70. 

A State  obtained  an  injunction  to  prevent  the  construction  of  a 
bridge  which  would  impede  the  navigation  of  the  Ohio  River. 
Pennsyl vania  v.  Wheeling  & Belmont  Bridge  Co.  13  How.  518. 
271,  2T2.  The  11th  article  of  the  amendments  has  forbidden  suits  by  indi- 
vidual citizens  against  the  States. 

If  the  judicial  power  does  not  extend  to  all  controversies  between 
States,  it  excludes  none.  Rhode  Island  v.  Massachusetts,  12  Pet. 
657  ; Curtis’  Com.  § 60. 

Its  mere  interest  in  a corporation  will  not  oust  the  jurisdiction, 
U.  S.  Bank  v.  Planters’  Bank,  9 Wheat.  904,  966 ; Curtis’  Com. 
§ 66.  See  also  Bank  of  the  Commonwealth  of  Kentucky  v.  Wistar, 
2 Pet.  318. 

It  seems  the  court  will  look  into  the  interest  of  the  State,  where 
it  claims  to  be  a party.  Pennsylvania  v.  Wheeling  Bridge  Co.  13 
How.  518.  539;  Curtis’  Com.  § 70. 

205,203.  205a.  “Between  a State  and  the  Citizens  op  Another 

211,  271,  State.” — Before  the  eleventh  amendment  (1793),  it  was  held,  that 

2‘2,  this  authorized  suits  to  be  brought  against,  as  well  as  by  States, 

448,  449.  where  the  plaintiff  was  a citizen  of  another  State.  Chisholm  r. 

Georgia,  2 Dali.  419-478;  Cohens  v.  Virginia,  6 Wheat.  406; 
Curtis’  Com.  § 60. 

Cana  But  this  power  of  a citizen  to  sue  a State  is  removed  by  the 

citizen  sue  a eleventh  amendment.  For  the  history  and  object  of  the  amend- 
2^272  ment,  see  Cohens  v.  Virginia,  6 Wheat.  406  et  seq.;  Curtis’  Com. 

§ 62.  But  where  a State  recovers  a judgment  against  a citizen  a 
writ  of  error  will  still  lie.  Id. ; Cohens  v.  Virginia,  6 Wheat.  409. 
When  is  a A State  is  within  the  operation  of  this  original  clause  of  the 
th^rule*hln  ^°ns^tlltion5  only  when  it  is  a party  to  the  record,  as  plaintiff  or 
271#*  defendant,  in  its  political  capacity.  Osborn  v.  Bank  of  United 
States,  9 Wheat.  738;  Curtis’  Cora.  ^ 63-65.  New  York  v.  Con- 
necticut, 4 DalL  3;  Story’s  Const.  § 1680,  1681. 

Where  a State  is  a party  to  the  record,  the  question  of  jurisdic- 
tion is  decided  by  inspection.  Id. 

The  State  is  only  a party  when  it  i9  on  the  record  as  such. 


01.  1.] 


201 


CITIZENS  OF  STATES,  206. 


(Fowler  v.  Lindsay,  3 Dali.  411,  415;  S.  C.  1 Pet.  Com.  190,  191 ; Cases. 

New  York  v.  Connecticut,  4 Dali.  1-6;  United  States  v.  Peters,  5 
Cr.  115,  139;  1 Kent’s  Com.  Lect.  15,  p.  302.)  Story’s  Const. 

§ 1685. 

206.  “ Controversies  between  Citizens  of  different  States.”  Contro- 
— u Controversies  ” is  synonymous  with  civil  suits.  Curtis’ 

Com.  § 73.  It  may  be  deduced:  1.  That  they  are  all  citizens  of  are 

the  United  States,  who  are  domiciliated  in  a State  ; (Scott  v.  Sand-  citizens  of  a 

ford,  19  How.  393.)  2.  And  they  are  suits  where  one  party  is 

citizen  of  one  State,  and  the  other  a citizen  of  another.  Curtis’  93’  109  220- 

Com.  § 73.  The  situation  of  the  parties,  rather  than  their  char-  222. 

acters  determines  the  jurisdiction.  Id.  At  the  commencement  of  Wliat  deter- 

the  suit.  Connoly  v.  Taylor,  2 Peters,  556,  564.  jurisdiction? 

This  clause  does  not  embrace  cases  where  one  of  the  parties  is  What  does  * 
a citizen  of  a territory,  or  of  the  District  of  Columbia.  Hartshorn  citizenship 
v.  Wright,  Peters  C.  C.  64  ; Scott  v.  Jones,  5 How.  377 ; Hepburn 
v.  Elszey,  2 Cr.  445;  Corporation  of  New  Orleans  v.  Winter,  1 170,  220.’ 
Wh.  91 ; G-assies  v.  Ballou,  6 Pet.  761;  1 Kent’s  Com.  Lect.  17,  p.  274. 
360;  Story's  Const.  § 1693,  1694;  Curtis’  Com.  § 77.  Citizen- 
ship, when  spoken  of  in  the  Constitution,  in  reference  to  the  juris- 
diction of  the  federal  courts,  means  nothing  more  than  resi- 
dence. Lessee  of  Cooper  v.  Galbraith,  3 Wash.  C.  C.  546;  Gassies  450,451. 
v.  Ballou,  6 Pet.  761;  Shelton  v.  Tiffin,  6 How.  163;  Lessee 
of  Butler  v-  Farnsworth,  4 Wash.  C.  C.  101.  But  a free  negro 
of  the  African  race,  whose  ancestors  were  brought  to  this  country 
and  sold  as  slaves,  is  not  a citizen  within  the  meaning  of  the 
Constitution,  nor  entitled  to  sue  in  that  character  in  the  federal  274 
courts.  Scott  v.  Sandford,  19  How.  393-4.  But  see  the  Civil 
Rights  Bill,  note  6,  p.  55 ; 14  St.  p.  27,  § 1 ; Paschal’s  Annotated 
Digest,  Art.  5382.  A corporation  created  by,  and  transacting  busi- 
ness in  a State,  is  to  be  deemed  an  inhabitant  of  the  State,  capable 
of  being  treated  as  a citizen,  for  all  purposes  of  suing  and  being  222. 
sued.  Louisville  IUR.  Co.  v.  Letson,  2 How.  497 ; Marshall  v. 

Baltimore  & Ohio  K R.  Co.  16  Id.  314;  Wheeden  v.  Camden  & 

Amboy  R.  R.  Co.  4 Am.  L.  R.  296.  The  judiciary  act  confines  the 
jurisdiction,  on  the  ground  of  citizenship,  to  cases  where  the  suit 
is  between  a citizen  of  a State  and  a citizen  of  another  State ; and, 
although  the  Constitution  gives  a broader  extent  to  the  judicial 
power,  the  actual  jurisdiction  of  the  circuit  courts  is  governed  by 
the  act  of  Congress.  Moffat  v.  Soley,  2 Paine,  103;  Hubbard  v. 

Northern  R.  R.  Co.  25  Yt.  715.  So,  too,  in  the  same  act,  there 
is  an  exception,  that  where  suit  is  brought  in  favor  of  an  assignee, 
there  shall  be  no  jurisdiction,  unless  suit  could  have  been  brought 
in  the  courts  of  the  United  States,  had  no  assignment  been  made. 

This  is  a restriction  on  the  jurisdiction  conferred  by  the  Constitution; 
and  yet  this  provision  has  been  sustained  by  the  Supreme  Court 
since  its  organization.  Assignee  of  Brainard  v.  Williams,  4 Mc- 
Lean, 122  ; Sheldon  v.  Sill,  8 How.  441.  The  Constitution  has  de- 
fined the  limits  of  the  judicial  power,  but  has  not  prescribed  how 
much  of  it  shall  be  exercised  by  the  circuit  courts.  Turner  v. 

Bank  of  North  America,  4 Dali.  10;  McIntyre  v.  Wood,  7 Cr.  506 ; 

Kendall  v.  United  States,  12  Pet.  616 ; Cary  v.  Curtis  3 How.  245. 

18 


202 


CITIZENS  OF  STATES,  206.  [Art.  III.,  Sec.  2, 


Ouly  a por- 
tion. 


How  must 
the  citizen- 
ship be 
averred  ? 


What  is 
the  extent 
of  the 
jurisdic- 
tion ? 


Can  a corpo 
ration  bo  a 

citizen  ? 


It  is  well  understood  by  those  experienced  in  the  jurisprudence  of 
the  United  States,  that  Congress  has  conferred  upon  the  federal 
courts  but  a portion  of  the  jurisdiction  contemplated  by  the  Con- 
stitution. Clarke  v.  City  of  Janesville,  4 Am.  L.  R.  593.  The 
plaintiffs  should  distinctly  aver  that  they  are  citizens  of  different 
States;  and  in  the  absence  of  such  averment,  the  judgment  will  be 
reversed  for  want  of  jurisdiction.  (Bingham  v.  Cabott,  3 Dali.  382  ; 
Jackson  v.  Ashton,  8 Pet.  148;  Capron  v.  Yan  Noorden,  2 Cr. 
126;  Montalet  v.  Murray,  4 Cr.  46.)  Scott  v.  Sandford,  19  How. 
420.  Curtis’  Com.  § 79.  note  4.  But  if  the  citizenship  be  denied, 
it  should  be  by  plea  in  abatement,  or  it  should  otherwise  appear  in 
the  record.  Id.  See  1 Brightly’s  Dig.  p.  126.  sec.  17,  and  notes 
thereon.  The  Constitution  of  the  Confederate  States  omitted  this 
jurisdiction.  Paschal’s  Annotated  Dig.  p.  92.  In  other  respects  it 
corresponded  to  this  section  and  the  eleventh  amendment.  Id. 

The  citizenship  must  be  expressly  averred,  or  the  facts  which 
constitute  it  must  be  set  forth.  (Turner  v.  Bank  of  North  America, 
4 Dali.  8 ; Montalet  v.  Murray,  4 Cr.  46 ; Bailey  v.  Dozier,  6 How. 
23.)  Curtis’  Com.  § 78. 

See  the  Judiciary  Act  of  September  24,  1789,  1 St.  78  ; 1 Bright- 
ly’s Digest,  p.  126  and  notes. 

The  Judiciary  Act  of  1789  limited  jurisdiction  of  national  courts 
so  far  as  they  are  determined  by  citizenship,  “to  suits  between 
a citizen  of  the  State  in  which  the  suit  is  brought  and  a citizen  ol 
another  State,”  and  except  in  relation  to  revenue  cases  this  limi- 
tation remains  unchanged.  Ins.  Co.  v.  Ritchie,  5 Wall.  542.  In 
consequence  of  nullification  the  jurisdiction  was  extended  to  “all 
cases  in  law  or  equity  arising  under  the  revenue  laws  of  the 
United  States  for  which  other  provisions  have  not  already  been 
made.”  (4  Stat.  632.)  Id.  And  by  this  act  many  suits  brought  in 
the  State  courts  were  removed  into  the  circuit  courts  (Elliott  v. 
Swartwout,  10  Pet.  137  ; Bend  v.  Hoyt,  13  Pet.  267);  Ins.  Co.  v. 
Ritchie,  5 Wall.  542.  The  fiftieth  section  of  the  Internal  Revenue  Act 
of  1854  extended  the  act  of  1833  to  all  cases  arising  under  the  laws 
for  the  collection  of  internal  duties.  (12  Stat.  241.)  Id.  But  the 
act  of  1866  repealed  the  fiftieth  section  aforesaid,  without  any 
saving  of  such  causes  as  were  then  pending,  and  said  that  “ the 
act  of  1833  shall  not  be  so  construed  as  to  apply  to  cases  arising 
under  act  of  1864,”  &c.  This  ousted  jurisdiction  in  the  causes 
then  pending.  Id.  When  the  jurisdiction  of  a cause  depends 
upon  a statute,  the  repeal  of  which  takes  away  the  jurisdiction,  or 
it  is  prohibited  by  a subsequent  statute,  it  can  no  longer  be  exer- 
cised. (Rex  v.  Justices  of  London,  3 Burrow,  1456 ; Norris  v. 
Crocker,  13  How.  229.)  Ins.  Co.  v.  Ritchie,  5 Wall.  544.  But 
where  the  case  would  be  removable  under  the  new  provision,  and 
it  is  the  opinion  of  the  circuit  judge  that  it  ought  to  be  retained, 
the  jurisdiction  is  not  lost.  City  of  Philadelphia  v.  Collector,  \ 
Wall.  720-30. 

As  respects  the  proof  of  the  residence  or  domiciliation  to  consti- 
tute citizenship,  see  Shelton  v.  Tiffin,  6 How.  163,  185 

A corporation,  whose  members  are  citizens  of  a different  State 
from  the  other  party,  is  a citizen  of  a different  State.  Hope  Ins. 


01.  1.] 


CITIZENS — ALIENS,  207-209. 


203 


Co.  v.  Boardman,  5 Cr.  57;  Bank  of  United  States  v.  Devaux,  5 207,  229, 32i 
Cr.  61 ; United  States  v.  Planters’  Bank,  9 Wheat.  410 ; Story’s 
Const.  § 1695;  Curtis’  Com.  § 76,  78.  The  doctrine  is  to  be  450. 
extended  to  its  creation  and  place  of  business.  The  Commercial 
& Railroad  Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  60. 

207.  “Between  Citizens  of  the  same  State  Claiming  What  is  a 
Lands  under  Grants  of  Different  States.” — A grant  of  land  Srant  ? 
is  a title  emanating  from  the  sovereignty  of  the  soil. 

Cases  of  grants  made  by  different  States  are  within  the  jurisdic-  When  are 
lion,  notwithstanding  one  of  the  States,  at  the  time  of  the  first  gfants 
grant,  was  part  of  the  other.  Town  of  Pawlet  v.  Clark,  9 Cr.  292.  states? 

It  is  the  grant  which  passes  the  legal  title ; and  if  the  controversy 
is  founded  upon  the  conflicting  grants  of  different  States,  the  fed- 
eral courts  have  jurisdiction,  whatever  may  have  been  the  prior 
equitable  title  of  the  parties.  Colson  v.  Lewis,  2 Wh.  377.  Not- 
withstanding one  State  may  have  originally  covered  the  territory 
of  both.  The  question  is,  have  the  grants  been  made  by  different 
States?  Id.;  Curtis’  Com.  § 80. 

20§.  “ Controversies  between  a State  or  the  Citizens  205, 205a , 
thereof,  and  Foreign  States,  Citizens,  or  Subjects.” — This  ^ wag 
was  intended  to  give  cognizance  to  the  federal  judiciary  where  t^e  object  of 
foreign  States,  or  individual  foreigners,  are  parties.  See  Chappe-  this  provi- 
delaine  v.  De  Chenaux,  4 Cr.  306,  308 ; Brown  v.  Strode,  5 Cr.  303.  sion? 

An  Indian  tribe,  or  nation,  within  the  United  States,  is  not  a Is  an  Indian 
“ foreign  State,”  within  the  meaning  of  this  clause.  Cherokee  tribe  a 
Nation  v.  Georgia,  5 Pet.  1.  See  this  case  for  a definition  of  the  stab?? 
relations  of  the  Cherokees,  as  a dependent  subordinate  State.  The 
very  term  “nation,”  so  generally  applied  to  them,  means  “a  peo-  91, 
pie  distinct  from  others.”  Worcester  v.  Georgia,  6 Pet.  619. 

209.  “ Foreign  Citizens  or  Subjects.” — If  the  party  to  the  What  aliens 
record  be  an  alien,  he  is  within  this  clause,  whether  he  sue  in  can  sue  ? 
his  own  right,  or  as  trustee,  if  he  has  a substantive  interest  as  a 
trustee.  Ohappedelaine  v.  De  Chenaux,  4 Cr.  306.  And  if  the 
nominal  plaintiff,  although  a citizen,  sue  for  thfe  use  of  an  alien, 
who  is  the  real  party  in  interest,  the  case  is  within  the  jurisdic- Suppose  a 
tion.  Browne  v.  Strode,  5 Id.  303.  A foreign  corporation  is  an  noiPill^ 
alien  for  this  purpose.  Society  for  the  Propagation  of  the  Gospel  g^for  an 
v.  Town  of  New  Haven,  8 Wh.  464.  Possibly  enlarged  to  creation  alien  ? 
and  residence.  Commercial  & Railroad  Bank  of  Vicksburg  v.  Slo-  206,  220,  221. 
comb,  14  Pet.  60  ; Curtis’  Com.  § 81. 

The  opposite  party  must  be  a citizen,  and  this  must  appear  from  Is  there, 
the  record.  Jackson  v.  Twentyman,  2 Pet.  136.  ^?h ere  both 

A mere  declaration  of  intention  to  become  a citizen,  under  the'part}es  ar0 
naturalization  laws,  is  not  sufficient  to  prevent  an  alien  from  being  aliens? 
regarded  as  a foreign  subject,  within  the  meaning  of  this  clause. 

Baird  v.  Byre,  3 Wall.  Jr. 

An  alien  is  a stranger  born  ; a person  born  in  another  or  6, 18, 93, 220. 
foreign  country,  as  distinguished  from  a native  or  natural  born  who  are 
citizen  or  subject.  In  English  law,  born  out  of  the  legiance  or  aliens  ? 
allegiance  of  the  king.  Co.  Litt.  § 128,  129a;  7 Co.  31  ; 1 Bl. 

Com.  366,  373;  2 Steph.  Com.  426-429.  In  American  law, 


204 


JURISDICTION,  210. 


[Art.  III.,  Sec.  2, 


274. 


What  are 
the  rights  oJ 
aliens  to  re- 
cover real 
estate  ? 


What  are 
the  aliens’ 
rights  to 
take  and 
hold? 


What  is  the 
jurisdiction 
of  the 
Supreme 
Court  ? 


Appellate  ? 
456-460. 


457. 


one  born  out  of  the  jurisdiction  of  the  United  States ; 2 Kent’s 
Com.  50 ; Burrill’s  Law  Die.,  Alien. 

At  common  law  an  alien  cannot  maintain  a real  action  or  one  for 
• the  recovery  of  real  estate.  (Co.  Litt.  129  ; Shepherd’s  Touchstone, 
204;  Roscoe  on  Real  Actions,  197;  Littleton,  § 198.)  White  v. 
Sabariego,  23  Tex.  246. 

And  see  Jones  v.  McMasters,  20  How.  8,  20,  21 ; Paschal’s  An- 
notated Digest,  notes  147-150,  237-240;  1 168— 1 170<x,  and  the 
numerous  cases  upon  the  rights  of  aliens  there  cited.  Lanfear  v. 
Hunly,  4 Wall.  209;  McDonough  v.  Millandon,  3 How.  707; 
Semple  v.  Hagar,  4 Wall.  433,  434;  1 Daniel,  ch.  53;  Bayes  v. 
Hogg,  1 Hayw.  485;  Orser  v.  Hoag,  3 Hill,  79. 

But  an  alien  may  take  lands  and  may  hold  them  against  every 
person  except  the  king,  and  against  the  king  until  inquisition  of 
office.  And  if  the  alien  be  naturalized,  before  seizure  by  the  gov- 
ernment, the  alien’s  title  vests  absolutely,  and  by  relation  relates 
back  to  the  date  of  the  purchase.  Fairfax  v.  Hunter.  7 Cr.  603  ; 
Cox  v.  Mcllvaine,  2 Cond.  86 ; Chirac  v.  Chirac,  2 Wheat.  259 ; 
Hughes  v.  Edwards,  9 Wheat.  489 ; Carneal  v.  Banks,  10  Wheat. 
181 ; Jackson  v.  Clarke,  3 Wheat.  1 ; Craig  v.  Leslie,  3 Wheat. 
563,  589 ; Craig  v.  Radford,  3 Wheat.  594 ; Orr  v.  Hodgson,  4 
Wheat.  453;  Fox  v.  Southack,  12  Mass.  148;  Jackson  v.  Adams, 
7 Wend.  376;  Jackson  ex  dem.  Culverhouse  v.  Beach,  1 John’s 
Cases.  399  ; S.  C.  4 Johns.  75  ; Bradwell  v.  Weeks,  1 Johns.  206; 
Moore  v.  White,  6 Johns.  Chan.  360  ; Cross  v.  De  Valla,  1 Wall.  13 ; 
Osterman  v.  Baldwin,  U.  S.  S.  C.,  Dec.  7,  1867 ; 6 Wall.  000.  The 
annexation  of  Texas  removed  the  alienage  from  citizens  of  the 
United  States.  Osterman  v.  Baldwin,  6 Wall.  000;  Cryer  v. 
Andrews.  11  Tex.  170-183;  Paschal’s  Annotated  Digest,  notes,  148, 
237,  238;  McKinney  v.  Sabariego,  18  How.  239. 

The  disability  of  the  alien  to  maintain  the  real  action  is  personal, 
and,  at  common  law,  relates,  not  to  the  date  of  acquiring  the 
property,  but  of  bringing  the  suit  1 Chitty’s  PL  470,  471;  7 
Bacon’s  Abridgment,  Tit.  Uses  and  Trusts,  E.  2,  p.  89;  1 Id. 
Alien,  D,  137;  £oke  Litt.  129;  Id.  (B.  3)  p.  6;  Comyn’s  Dig., 
Alien  (C.),  p.  301 ; Kemp  v.  Kennedy,  1 Pet.  C.  C.  R.  40;  affirmed 
5 Cr.  173  ; 2 Cond.  223. 

[2]  In  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls,  and  those  in  which  a State 
shall  be  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned, 
the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  feet,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make. 

o o 

210.  The  Supreme  Court  has  no  original  jurisdiction  except 
in  the  two  classes  of  cases  mentioned  in  the  first  clause.  Story’s 
Const.  § 1702.  And  to  that  extent  it  would  seem  to  be  ex- 
clusive. United  States  v.  Ravara,  2 Dali.  297 ; Marbury  v.  Madi- 
son, 1 Cr.  137. 


01.  2.] 


ORIGINAL  JURISDICTION,  210. 


205 


“Cases”  here  is  applied  as  a generic  term  to  all  the  objects  How  is  the 
designated  by  “case  ” and  “controversy”  in  the  preceding  clause.  ter,“  caJes 
Curtis’  Com.  § 83.  See  “ case  ” and  “ controversy  ” defined.  i99_201. 

Id. ; ante , n.  199 ; Martin  v.  Hunter,  1 Wheat.  304,  333 ; Curtis’ 

Com.  § 124-130.  If  the  words  “to  all  cases”  give  exclusive 
jurisdiction  in  cases  affecting  foreign  ministers,  they  may  also  give 
exclusive  jurisdiction,  if  such  be  the  will  of  Congress,  in  cases 
arising  under  the  Constitution,  laws,  and  treaties  of  the  United  181, 182,  202. 
States.  (Cohens  v.  Virginia,  6 Wheat.  392-399.)  Story’s  Const. 

§ 1*13. 

But  it  does  not  mean  that  the  court  has  jurisdiction  of  every  Has  the 
“case  ” or  question  which  may  arise  under  the  Constitution,  laws,  court  juris- 
or  treaties.  These  often  necessarily  devolve  upon  Congress  or  the  everv^ase 
executive,  according  as  the  law  shall  direct.  (Luther  v.  Borden,  or  question  ? 
7 How.  1.)  Curtis’  Com.  § 84-85a.  The  word  is  therefore  *95. 
limited  to  such  “cases”  as  arise  between  parties,  or  are  of  a 
judicatory  nature.  (Madison,  5 Elliot’s  Debates,  483.)  Id.  § 85a, 

100. 

Hot  to  all  questions  by  which  an  ambassador  may  be  affected. 

Id.  See  Stanbery!s  arguments  in  the  Mississippi  and  Georgia  In- 
junction cases,  against  the  President  and  others,  reported  in  4 
Wallace.  See  the  United  States  v.  Ferreira,  13  How.  40. 

“ Original  Jurisdiction  ” is  the  right  to  take  original  cog-  What  is 
nizance  of  the  case  or  controversy,  and  to  hear  and  determine  paginal 
it  in  the  first  instance.  It  is  that  in  which  something  is  demanded J 11112  10  on? 
in  the  first  instance  by  the  institution  of  process,  or  the  com- 
mencement of  a suit.  Curtis’  Com.  § 107  ; Storv’s  Const.  § 1703, 

1704. 

The  residue  of  the  original  jurisdiction  remains  to  be  vested  by  Where  is 
Congress  in  any  inferior  tribunals  which  it  may  see  fit  to  create,  the  residue 
(Martin  v.  Hunter,  1 Wheat.  304,  307  ; Osborn  v.  The  Bank  of  the  wfsdic- 
United  States,  9 Wheat.  738,  820;  Cohens  v.  Virginia,  6 Wheat  tioni 
395  ; Story’s  Const.  § 1698.)  Curtis’  Com.  § 111. 

Original  jurisdiction,  so  far  as  the  Constitution  gives  a rule,  is  What  is 
coextensive  with  the  judicial  power.  (Osborn  v.  Bank  of  United  the  extent 
States,  9 Wheat.  820.)  Curtis’  Com.  § 159.  And  it  would  seem  J^inal 
to  follow  that  in  cases  where  the  Constitution  itself  has  vested  jurisdic- 
original  jurisdiction  in  the  Supreme  Court,  that  investiture  musttion? 
operate  as  an  exception  to  the  general  authority  to  Congress  to 
vest  original  jurisdiction  according  to  its  discretion.  Id.  And 
there  is  doubt  whether  in  such  cases  jurisdiction  of  the  Supreme 
Court  is  not  both  original  and  exclusive.  (United  States  v. 

Ortega,  11  Wheat.  467;  See  Story’s  Const.  § 1699;  1 Kent’s 
Com.  Lect.  XV.  p.  315.)  Curtis’  Com.  160.  But  there  are  de- 
cisions the  other  way.  United  States  v.  Ravara,  2 Dali.  297  ; and 
see  also  Chisholm  v.  Georgia,  2 Dali.  419,  431,  436 ; Act  of  28 
Feb.  1839  (5  St.  32);  Curtis’  Com.  § 161-164;  Schooner  Ex- 
change v.  McFaddin,  2 Cr.  117. 

Jurisdiction  is  the  power  to  hear  and  determine  a cause.  It  is  What  is 
coram  judice , whenever  a case  is  presented,  which  brings  this  jurisdic- 
power  into  action.  If  the  petitioner  states  such  a case  in  his  peti-  tlon' 
tion,  that  on  a demurrer,  the  court  would  render  judgment  in  his  195- 


206  ORIGINAL  JURISDICTION,  210,  211.  [Art.  III.,  Sec.  2, 


468.  favor,  it  is  an  undoubted  case  of  jurisdiction.  (United  States  v. 
Arredondo,  6 Pet.  709.)  Banton  v.  Wilson,  4 Tex.  403,  404. 

It  is  the  power  to  hear  and  determine  the  subject-matter  in  con- 
troversy between  the  parties  to  a suit ; to  adjudicate  or  to  exercise 
judicial  power  over  them,  the  question  is,  whether  on  a cause 
before  a court,  their  action  is  judicial  or  extrajudicial;  with  or 
without  authority  of  law  to  render  a judgment  or  decree  upon  the 
rights  of  the  litigant  parties.  If  the  law  confer  the  power  to 
render  a judgment  or  decree,  then  the  court  has  jurisdiction. 
(Rhode  Island  v.  Massachusetts.  12  Pet.  718.)  Banton  v.  Wilson, 
4 Tex.  404. 


Has  a State  A State  court  has  no  jurisdiction  of  a suit  against  a consul ; and 
zance  of^ni"  w^enever  this  defect  of  jurisdiction  is  suggested,  the  court  will 
consuls  ? quash  the  proceeding.  It  is  not  necessary  that  it  should  be  by 
plea  before  general  imparlance.  Mannhardt  v.  Soderstrom,  1 Binn. 
138 ; Davis  v.  Packard,  6 Pet.  41 ; Commonwealth  v.  Kosloff,  5 
S.  & R.  545 ; Griffin  v.  Dominguez,  2 Duer,  656.  A consul  may, 
however,  be  summoned  as  a garnishee  in  an  attachment  from  a 
State  court.  Kidderlin  v.  Meyer,  2 Miles,  242.  The  circuit  courts 
have  no  jurisdiction  of  a cause  in  which  a State  is  a party.  Gale 
v.  Babcock,  4 Wash.  C.  C.  199 ; S.  C.  Id.  344;  Cohens  v.  Virginia, 
When  is  already  cited.  In  those  cases  in  which  original  jurisdiction  is 
there  origi-  given  to  the  Supreme  Court,  founded  on  the  character  of  the  parties, 
appellate  judicial  power  of  the  United  States  cannot  be  exercised  in  its 

jurisdic-  appellate  form.  Osborn  v.  United  States  Bank,  9 Wheat.  820.  But 
tion?  if  a caSe  draws  in  question  the  laws,  Constitution,  or  treaties  of 

181, 182,  202.  the  United  States,  though  a State  be  a party,  the  jurisdiction  of 
the  federal  courts  is  appellate ; for  in  such  case  the  jurisdiction  is 
founded,  not  upon  the  character  of  the  parties,  but  upon  the  nature 
of  the  controversy.  Cohens  v.  Virginia,  6 Wheat.  392  ; Martin  v. 
Hunter’s  Lessee,  1 Wheat.  337.  Congress  has  no  power  to  confer 
original  jurisdiction  on  the  Supreme  Court  in  other  cases  than  those 
enumerated  in  this  section.  Marbury  v.  Madison,  1 Cr.  137  ; In 
the  matter  of  Metzger,  5 How.  176,  191-2;  In  re  Kaine,  14  How. 
119.  See  1 St.  80,  § 13 ; 1 Brightly’s  Dig.  861,  862,  and  notes. 

And  it  seems  that  the  original  jurisdiction  is  exclusive.  (Mar- 
bury v.  Madison,  1 Cr.  137.)  Curtis’  Com.  § 108  ; Osborn  v.  Bank 
of  United  States,  9 Wheat.  738,  820,  821 ; Story’s  Const.  § 1697- 
1699. 

Where  the  character  of  the  cause  gives  appellate  jurisdiction, 
and  the  character  of  the  party  (as  an  ambassador  or  State)  gives 
original  jurisdiction,  the  appellate  jurisdiction  is  not  thereby  ousted. 
(Cohens  v.  Virginia,  6 Wheat,  392  et  seq. ; Martin  v.  Hunter,  1 
Wheat.  337.)  Curtis’  Com.  § 109;  Story’s  Const.  § 1706-1721. 

The  original  jurisdiction  of  the  Supreme  Court  can  only  include 
cases  enumerated  in  the  Constitution.  (Marbury  v.  Madison,  1 Cr. 
137.) 


Whit  is 

appellate 

jurisdic- 

tion? 


211.  “ In  all  other  Cases  before  mentioned,  the  Supreme 
Court  shall  have  Appellate  Jurisdiction/’  &c. — It  is  the 
essential  criterion  of  appellate  jurisdiction,  that  it  revises  and  cor- 
rects the  proceedings  in  a cause  already  instituted,  and  does  not 


207 


01.  2.J  APPELLATE  JURISDICTION,  211. 

create  that  cause.  Marbury  v.  Madison,  1 Cr.  138;  Curtis’  Com.  459.460. 

§ 110,  113. 

The  Supreme  Court  possesses  no  appellate  power  in  any  case,  How  must 
unless  conferred  upon  it  by  act  of  Congress,  nor  can  it,  when  con-  jt  be  con- 
ferred, be  exercised  in  any  other  mode  of  proceeding  than  thatlerre  ' 
which  the  law  prescribes.  Barry  v.  Mercein,  5 How.  119. 

The  appellate  powers  are  not  given  by  the  judicial  act,  but  by 
the  Constitution.  They  are  limited  and  regulated  by  the  judicial 
act,  and  by  such  other  acts  as  have  been  passed  upon  the  sub- 
ject. Durousseau  v.  The  United  States,  6 Cr.  313.  Curtis’  Com. 

§112. 

Congress  may  prescribe  the  mode  of  exercising  this  appellate 
jurisdiction.  Marbury  v.  Madison,  1 Cr.  137  ; Weston  v.  Charles- 
ton, 2 Pet.  449;  United  States  v.  Hamilton,  3 Dali.  17  ; Ex  parte 
Bollman,  4 Cr.  75;  Ex  parte  Kearney,  7 Wheat.  38;  Ex  parte 
Crane,  5 Pet.  190;  Story’s  Const.  § 1755,  1756;  Curtis’  Com. 

§113. 

By  the  2 2d  section  of  the  judiciary  act,  the  controversy  must  What  does 
be  concerning  a thing  of  money  value ; the  judgment  must  be  the  &ct 
final ; and  the  matter  in  controversy  must  exceed  the  sum  of  two  re(lmre 
thousand  dollars.  By  the  25th  section,  the  right  tore-examine  does 
not  depend  on  the  money  value  of  the  thing  in  controversy,  but 
upon  the  character  of  the  right  in  dispute,  and  the  judgment  which 
the  State  court  has  pronounced  upon  it;  and  it  is  altogether  im- 
material whether  the  right  in  controversy  can  or  can  not  be 
measured  by  a money  standard.  (1  St.  84-86 ; § 22,  25.  Barry 
v.  Mercein,  5 How.  120.  See  Wilson  v.  Daniel,  3 Dali.  401;  3 
Cond.  185;  Course  v.  Stead,  4 Dali.  22;  1 Cond.  217;  United 
States  v.  Brig  Union,  4 Cr.  216;  2 Cond.  91  ; Smith  v.  Henry,  3 
Pet.  469;  Gordon  v.  Ogden,  Id.  33  ; Hagan  v.  Foison,  10  Pet.  160  ; 

Oliver  v.  Alexander,  6 Pet.  143  ; Scott  v.  Lunt,  6 Pet.  349 ; Wal- 
len v.  Williams,  7 Cr.  278;  Fisher  v.  Cockrell,  5 Pet.  248;  Martin 
v.  Hunter,  1 Wheat.  304;  3 Cond.  575;  Williams  v.  Norris,  12 
Wheat.  117;  6 Cond.  462.)  Bank  of  United  States  v.  Daniel,  12 
Plow.  52.  Rector  v.  Ashley,  U.  S.  C.  C.  Die.  T.,  1867  ; 6 Wall.  000. 

To  give  appellate  jurisdiction  under  the  25th  section,  it  must 
appear : — 

First — That  some  one  of  the  questions  stated  in  the  section  did  What  gives 
arise  in  the  court  below ; and  Secondly,  that  a decision  was  appellate 
actually  made  thereon  by  the  same  court,  in  the  manner  required {jjjjfy*0" 
by  the  section.  (Shoemaker  v.  Randell,  10  Pet.  394.)  McKinney 
v.  Carroll,  12  How.  70. 

That  is,  that  the  question  was  made  and  the  decision  given  by 
the  court  below  on  the  very  point;  or  that  it  must  have  been 
given  in  order  to  have  arrived  at  the  judgment.  (O wings  v.  Nor- 
wood, 5 Cr.  344;  Smith  v.  The  State,  6 Cr.  281  ; Martin  v.  Hunter, 

5 Wheat.  305,  355 ; Inglee  v.  Coolidge,  4 Cond.  155  ; Miller  v. 

Nicholls,  4 Wheat.  311,  315;  4 Cond.  465;  Williams  v.  Norris,  12 
Wheat.  117,  124;  6 Cond.  462;  Fisher  v.  Cockerill,  5 Pet.  255, 

258;  Wilson  v.  Blackbird  Creek  Marsh  Company,  2 Pet.  245;  Sat- 
terlee  v.  Mathewson,  2 Pet.  380,  410;  Craig  v.  Missouri,  4 Pet. 


208 


LAW  AFTD  FACT,  211.  [Art.  III.,  See.  2, 


Give  tho 
four  requi- 
sites ? 


Define  law 
and  fact  ? 
270-272. 


What  jjives 
the  appel- 
late juris- 
diction ? 


What  juris- 
diction can 
Congress 
confer  ? 


Can  the 
States 
superadd 
any  thing  V 


410;  Davis  v Packard,  6 Pet.  41,  48;  Mayor  of  New  Orleans 
v.  De  Armas  ^ Pet.  234.)  Crowell  v.  Pandell.  10  Pet.  394-398. 

After  this  rAl  review,  these  propositions  were  stated : — 1.  That 
some  one  of  the  questions  (stated  in  tho  25th  section)  did  arise  in 
the  State  court ; 2.  That  the  question  was  decfded  by  the  State 
court  as  required  in  the  same  section ; 3.  It  is  not  necessary  that 
the  question  should  appear  on  the  record  to  have  been  raised,  and 
the#  decision  made  in  direct  and  positive  terms  ipsissimis  verbis , 
but  that  it  is  sufficient  if  it  appear  by  clear  and  necessary  intend- 
ment, that  the  question  must  have  been  raised,  and  must  have  been 
decided  in  order  to  have  induced  the  judgment.  4.  That  it  is  not 
sufficient  to  show  that  a question  might  have  arisen  and  been  ap- 
plicable to  the  case;  unless  it  is  further  shown  on  the  record,  that 
it  did  arise,  and  was  applied  by  the  State  court  in  the  case. 
Crowell  v.  Randell,  10  Pet.  398.  Affirmed,  Choteam  v.  Margue- 
rite, 12  How.  510;  McKinney  v.  Carroll,  12  How.  70.  See  Bright- 
ly’s  Digest,  Tit.  u Errors  and  Appeals,”  pp.  257-261,  and  volumi- 
nous notes  thereon. 

“Law  and  Fact.” — Since  the  seventh  amendment,  Congress 
can  not  confer  upon  the  Supreme  Court  authority  to  grant  a new 
trial  by  a re-examination  of  the  facts,  and  tried  by  a jury,  except 
to  redress  errors  of  law.  (Parsons  v.  Bedford,  3 Pet.  447,  449. 
See  Bank  of  Hamilton  v.  Dudley,  2 Pet.  492).  Curtis’  Com.  § 114. 

It  is  the  “ case  ” and  not  the  court  which  gives  the  appellate 
jurisdiction.  (Martin  v.  Hunter,  1 Wheat.  394).  Curtis’  Com. 

§ 115.  Therefore,  if  the  question  or  the  parties  give  federal  juris- 
diction, it  may  be  reached  by  appeal.  Id. ; Cohens  v.  Virginia, 

6 Wh.  413.  The  objects  of  appeal,  not  the  tribunals  from  which 
it  is  to  be  made,  are  alone  contemplated.  Id.  416;  Curtis’  Com. 

§ 116.  And  see  Osborn  v.  Bank  of  United  States,  9 Wheat. 
820,  821;  Story’s  Const.  § 1701. 

If  the  objects  can  be  attained  without  excluding  the  concurrent  ' 
jurisdiction  of  the  State  courts,  over  cases  which  existed  before, 
it  would  seem  to  be  necessary  to  adopt  such  a construction  as  will 
sustain  their  concurrent  powers.  (Teal  v.  Felton,  12  How.  284, 
292.)  Curtis’  Com.  § 121,  123,  124.  As  to  when  original  juris- 
diction is  exclusive,  see  same  author,  § 129-135,  and  Martin  v. 
Hunter;  Houston  v.  Moore,  5 Wheat.  1,  12. 

Congress  can  not  confer  jurisdiction  upon  any  courts,  but  such 
as  exist  under  the  Constitution  and  laws  of  the  United  States, 
although  the  State  courts  may  exercise  jurisdiction  in  cases  au- 
thorized by  the  laws  of  the  State,  and  not  prohibited  by  the  ex- 
clusive jurisdiction  of  the  federal  courts.  Houston  v.  Moore,  5 
Wheat.  24-28,  § 135,  p.  178.  And  wherever  the  law  of  Congress 
furnishes  the  offense,  the  State  law  can  only  be  on  forced  by  the 
authority  of  Cougress,  or  unless  the  power  remain  concurrent.  Id. 

If  the  jurisdiction  be  concurrent,  the  sentence  of  either  court 
may  bo  pleaded  in  law.  Houston  v.  Moore,  5 Wheat.  40;  1 Cur- 
tis’ Com.  p.  1 80. 

Where  Congress  lias  exercised  a power  over  a particular  sub- 
ject given  them  by  the  Constitution,  it  is  not  competent  for  State 
legislation  to  add  to  the  provisions  of  Congress  upon  that  subject. 


Cl.  3.] 


TRIAL — CRIMES,  212. 


209 


The  action  by  Congress  seems  to  exclude  State  legislation. 

(Houston  y.  Moore,  5 Wheat.  1,  22,  23 ; Prigg  y.  Pennsylvania, 

16  Pet.  608.)  Story’s  Const.  3d  ed.  p.  615. 

“ Where  a State  shall  be  a party.” — That  is:  1.  Where  one  In  whai 
State  is  plaintiff,  and  another  State  is  defendant;  2.  Where  a^eeaCg^te 
State  is  plaintiff,  and  an  individual,  whether  a citizen  of  some  other  parta  ? 
State  or  an  alien,  is  defendant.  3.  Where  a foreign  State  is  plain- 
tiff against  one  of  the  United  States  as  defendant.  Curtis’  Com. 

§ 153-157.  S§e  Rhode  Island  v.  Massachusetts,  12  Pet.  657  ; New 
Jersey  v.  New  York,  5 Pet.  283 ; Pennsylvania  v.  The  Wheeling 
& Belmont  Bridge  Co.  13  Howard,  528 ; Cherokee  Nation  v. 

Georgia,  5 Pet.  1 ; Ex  parte  Juan  Madrazo,  7 Pet.  627. 

[3.1  The  trial  of  all  crimes,  except  in  cases  of  im-  How  ana 

where  must 

peachment,  shall  be  by  jury;  and  such  trial  shall  be  trials  be 
held  in  the  State  where  the  said  crimes  shall  have 
been*  committed  ; but  when  not  committed  within  p 443. 
any  State,  the  trial  shall  be  at  such  place  or  places  as 
the  Congress  may  by  law  have  directed. 

212.  “The  Trial.”  (L.  Lat.  trialio.  Exactissima  litis  contestatce,  Define 
coram  judice,  per  duodecem  virale  exagititio.  Spelman.) — The  term  trial? 
means  here,  the  examination  before  a competent  tribunal,  accord- 
ing to  the  laws  of  the  land,  of  the  facts  put  in  issue  upon  the  in- 
dictment or  presentment,  for  the  purpose  of  determining  the  truth 
of  such  issues.  United  States  v.  Curtis,  4 Mason,  232 ; Co.  Litt. 

124&.  And  see  Burrill’s  Law  Die.,  Trial;  Magna  Charta,  ch.  29 
(9  Henry  III.);  2 Inst.  45;  3 Black.  Com.  379-381;  4 Black. 

Com.  349,  350 ; 2 Kent’s  Com.  Lect.  24,  pp.  1-9 ; 3 Elliot’s 
Debates,  331,  339;  De  Lolme,  B.  1,  ch.  13,  B.  2,  ch.  16;  Paley, 

B.  6,  ch.  8;  2 Wilson’s  Law  Lect.  P.  2,  ch.  6,  p.  305;  Story’s 
Const.  § 1778-1794. 

“The  trial”  per  pais,  or  by  the  country,  is  the  trial  by  a jury, 
who  are  called  the  peers  of  the  party  accused,  being  of  the  like 
condition  and  equality  in  the  State.  (Magna  Charta.)  Story’s  Const. 

§ 1779. 

“Of  all  Crimes  except  in  Cases  of  Impeachment.” — See  What  means 
“ Crime  ” defined,  notes  193,  194.  Here  it  means  treason,  piracy,  J|grr^Ifes,, 
felony,  or  some  offense  against  the  law  of  nations  or  an  act  of  the  nere ' 
Congress  of  the  United  States.  And  this  clause  is  to  be  taken  39. 
subject  to  the  exceptions,  in  the  fifth  amendment,  as  to  trials  in  the 
land  and  naval  service.  The  term  “ crime  ” here  doubtless  em- 
braces misdemeanor. 

In  the  case  of  the  United  States  v.  Hudson  & Goodwin  (7 
Cranch,  32),  it  was  held  that  “the  legislative  authority  must  first 
make  an  act  a crime,  affix  a punishment  to  it,  and  declare  the 
court  that  shall  have  jurisdiction  of  the  offense,”  before  the  courts 
of  the  United  States  can  exercise  jurisdiction  over  it.  This  doc- 
trine was  affirmed  by  the  case  of  the  United  States  v.  Coolidge  et 
al.  (1  Wheaton,  415),  and  Chief- Justice  Marshall,  in  delivering  the 
opinion  of  the  court  in  Ex  parte  Bollman  & Swartwout  (4  Cranch, 


210 


JUDGMENT,  212. 


[Art.  III.,  Secs.  2,  3, 


95),  said:  “ Courts  which  originate  in  the  common  law  possess  a 
jurisdiction  which  must  be  regulated  by  the  common  law,  until 
some  statute  shall  change  their  established  principles ; but  courts 
which  are  created  by  written  law,  and  whose  jurisdiction  is  defined 
by  written  law,  can  not  transcend  that  jurisdiction.”  And  it  was  in 
following  these  cases  that  Justice  McLean  held,  in  United  States 
v.  Lancaster  (2  McLean’s  R.  433),  that  “the  federal  government 
has  no  jurisdiction  of  offenses  at  common  law.  Even  in  civil  cases 
the  federal  government  follows  the  rule  of  the  |bmmon  law  as 
adopted  by  the  States,  respectively.  It  can  exercise  no  criminal 
jurisdiction  which  is  not  given  by  statute,  nor  punish  any  act,  crim- 
inally, except  as  the  statute  provides.”  The  same  doctrine  is  fol- 
lowed in  Kitchen  v.  Strawbridge,  1 Wash.  C.  C.  R.,  84;  United 
States  v.  New  Bedford  Bridge,  1 Wood  & Minot  401 ; Ex  parte 
Sullivan,  3 Howard,  103;  12  Peters,  654;  4 Dallas,  10,  and 
note;  l Kent’s  Com.  354;  Sedgwick  on  Statutory  and  Consti- 
tutional Law,  17 ; and  Wharton,  in  reviewing  this  question, 
says;  “However  this  maybe  on  the  merits,  the  line  of  recent 
decisions  puts  it  beyond  doubt  that  the  federal  courts  will  not 
take  jurisdiction  over  any  crimes  which  have  not  been  placed 
directly  under  their  control  by  act  of  Congress.”  (Am.  Criminal 
Law,  174.)  Report*  on  the  Impeachment  of  the  President,  75,  76. 
Define  jury?  “By  a Jury  ” is  generally  understood  to  mean,  ex  vi  termini,  a 
trial  by  a jury  of  twelve  men,  impartially  selected  (in  accordance 
with  law),  who  must  unanimously  concur  in  the  guilt  of  the  ac- 
260.  cused  before  a conviction  can  be  had.  Any  law,  therefore,  dis- 
pensing with  any  of  these  requisites,  may  be  considered  unconsti- 
tutional. (Workv.  The  State,  2 Ohio  St.  R.  296;  The  State  v.  Cox, 
3 English,  436;  The  State  v.  The  People,  2 Parker  C.  C.  322,  329, 
402,  562;  2 Leading  Criminal  Cases,  327,  and  note.)  Story’s  Const. 
3d  edition,  § 1779. 

Does  it  This  does  not  constitute  them  judges  of  the  law  in  criminal 

make  the  cases.  United  States  v.  Morris,  1 Curt.  C.  C.  23,  49;  United  States 
^ud^es^of  the  v*  Shive,  Bald.  51O;  United  States  v.  Battiste,  2 Sumn.  240.  And 
law?1"  see  Townsend  v.  The  State,  2 Blackf.  (Ind.),  152;  Pierce  v.  The 
State,  13  N.  H.  536:  Commonwealth  v.  Porter,  10  Met.  263;  Com- 
monweal tli  v.  Sherry,  Wharton  on  Homicides,  481.  It  only  em- 
braces those  crimes  which  by  former  laws  and  customs  had  been 
tried  by  jury.  United'  States  v.  Duane,  Wall.  106.  It  did  not 
secure  to  the  conspirators  who  assassinated  the  President  in 
Washington  city  during  the  war,  and  while  martial  law  existed  in 
Washington  city,  the  right  to  trial  by  jury.  The  Trial  of  the 
Conspirators. 

231-237.  This  section  compared  with  the  fourth,  fifth,  and  sixth  amend- 

ments. Ex  parte  Milligan,  4 Wallace,  119;  Story’s  Const.  § 
1782.  The  first  of  these  secures  a presentment  or  indictment  by 
a grand  jury  before  there  can  be  a trial  by  .a  jury.  Id.  And  foi 
the  reason  of  these  amendments  in  the  shape  of  a Bill  of  Rights, 
see  2 Elliot’s  Debates,  331,  380-427;  1 Id.  119-122;  3 Id.  139-153. 

Why  in  the  300- 
States 

where  com-  21tt.  In  States  where  COMMITTED. — This  was  to  prevent  the 
mitted  ? defendant  from  being  dragged  into  a distant  State.  (2  Elliot’s 


01.  3,  1.] 


TRIAL — TREASON,  214,  215. 


211 


Debates,  399,  400,  407,  420;  2 Hale’s  P.  C.  ch.  24,  pp.  260,  264; 

Hawk  P.  C.  ch.  25,  § 34 ; 3 Bl.  Com.  383.) 

Many  of  the  States  are  divided  into  two  or  more  districts  (cir- 
cuits) defined  by  law ; and  the  rule  of  trying  the  accused  in  such 
district  is  believed  to  be  now  strictly  adhered  to. 

214.  “But  when  not  committed  within  ant  State,  THE  Where  are 
Trial  shall  be  at  such  place  or  places  as  Congress  may  by  ??eTiers 
Law  have  directed.” — The  offenses  committed  in  the  District  of  tne 
Columbia  have  always  been  tried  in  the  District,  under  the  “ exclu- 
sive legislation;”  those  in  the  organized  territories  have  been  tried 
there  by  the  local  courts  of  the  territories ; those  committed  by 
whites,  or  by  Indians  against  whites  (to  a limited  extent),  have  been 
tried  in  the  States  to  whose  federal  courts  jurisdiction  had  been 
committed  by  the  laws  to  regulate  trade  and  intercourse  with  the 
Indian  tribes ; those  committed  in  forts  and  arsenals,  over  which 
jurisdiction  had  been  ceded  by  the  States,  have  been  tried  in  the 
United  States  District  or  Circuit  Courts  in  that  State ; those  upon 
the  high  seas  in  the  State  where  the  vessel  first  arrives. 

So  that  “ not  committed  in  any  State,”  may  be  defined  to  be 
offenses  committed  in  the  District  of  Columbia,  in  forts  or  arsenals 
to  which  jurisdiction  has  been  ceded  by  the  States  ; in  the  terri- 
tories of  the  United  States ; in  the  Indian  country ; upon  the 
high  seas,  and  everywhere,  when  against  the  law  of  nations. 

Sec.  III. — ["1.1  Treason  against  the  United  States  Define 

•“  “■  treason  ? 

shall  consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  com-  192. 
fort.  No  person  shall  be  convicted  of  treason,  unless  By  how 
on  the  testimony  of  two  witnesses  to  the  same  overt  witnesses? 
act,  or  on  confession  in  open  court. 


215.  “ Treason.” — [Law  Lat.  Proditio.  L.  Fr.  Treson , from  Define 
treer,  trehir,  trahir,  to  betray.]  Burrill’s  Law  Die.,  Treason.  treason  at 

The  word  “ only  ” was  used  to  exclude  from  the  criminal  juris-  law? 
prudence  of  the  new  republic  the  odious  doctrines  of  constructive  Define 
treason.  Its  use,  however,  while  liimting  the  definition  to  plain  “only”? 
overt  acts,  brings  these  acts  into  conspicuous  relief,  as  being 
always,  and  in  essence,  treasonable. 

War,  therefore,  levied  against  the  United  States  by  citizens  oi  461. 
the  republic,  under  the  pretended  authority  of  the  new  State 
government  of  North  Carolina,  or  the  new  central  government 
which  assumed  the  title  of  the  “ Confederate  States,”  was  treason 
against  the  United  States.  Chief- Justice  Chase  in  Shortridge  v. 

Macon  (North  Carolina),  16th  June,  1867. 

In  the  prize  cases  the  Supreme  Court  simply  asserted  the  right  117. 
of  the  United  States  to  treat  the  insurgents  as  belligerents,  and  to 
claim  from  foreign  nations  the  performance  of  neutral  duties  under 
the  penalties  known  to  international  law.  The  decision  recognized, 
also,  the  fact  of  the  exercise  and  concession  of  belligerent  rights, 
and  affirmed,  as  a necessary  consequence,  the  proposition  that 


212 


TREASON,  215,  216.  [Art.  III.,  Sec.  3, 


What  were 
the  relations 
of  the  inhab- 
itants of  the 
rebel  States 
to  those  loy- 
al to  the 
Union  ? 


What  is  the 
effect  of  se- 
questration ? 


What  war  is 
necessary  ? 


From 
whence 
copied  ? 


What  is  a 
levying  of 
war? 


To  what 
trial  does  it 
rcf«r  ? 


during  the  war  all  the  inhabitants  of  the  country  controlled  by 
the  rebellion  and  all  the  inhabitants  of  the  country  loyal  to  the 
Union  were  enemies  reciprocally  each  of  the  other.  But  there  is 
nothing  in  that  opinion  which  gives  countenance  to  the  doctrine 
which  counsel  endeavor  to  deduce  from  it:  that  the  insurgent 
States,  by  the  act  of  rebellion,  and  by  levying  war  against  the 
nation,  became  foreign  States,  and  their  inhabitants  alien  enemies. 
United  States  v.  Shortridge.  Id. 

Held,  that  the  enforced  payment  of  a debt  under  the  confederate 
sequestration  laws,  was  no  protection.  It  was  denied  that  the 
“Confederate  States”  was  a de facto  government. 

For  the  enumeration  of  the  acts  of  treason  in  England,  see  4 
Steph.  Com.  185-193;  4 Bl.  Com.  76-84;  Wharton’s  American 
Crim.  Law,  B.  7.  ch.  1,  § 2715-2777.  Burrill’s  Law  Die.,  Treason. 

There  must  be  an  actual  levying  of  war  ; a conspiracy  to  subvert 
the  government  by  force  is  not  treason ; nor  is  the  mere  enlist- 
ment of  men,  who  are  not  assembled,  a levying  of  war.  Ex  parte 
Bollman,  4 Cr.  75;  United  States  v.  Hanway,  2 Wall.  Jr.  140;  Id. 
136;  4 Am.  L.  J.  83.  And  no  man  can  be  convicted  of  treason, 
who  was  not  present  when  the  war  was  levied.  2 Burr’s  Trial, 
401,  439;  and  see  the  same  case,  Appendix  to  4 Cranch,  469-508. 
See  United  States  v.  Willberger,  5 Wheat.  97. 

The  whole  definition  is  copied  from  the  statute  of  25  Ed.  III.,  ch. 
2 ; 1 Hale’s  Pleas  of  the  Crown,  259  ; Judge  Marshall’s  charge  in 
Burr’s  Trial;  Story’s  Const.  § 1799.  See  3 Wilson’s  Law  Lect., 
ch.  5,  pp.  95,  96;  Montesquieu  Spirit  of  Laws,  B.  12,  ch.  7 ; 4 Bl. 
Com.  75-84.  The  definition  admits  of  no  constructive  treasons. 
Federalist,  No.  43  ; Story’s  Const.  § 1798;  Jefferson’s  Correspond- 
ence, 72-103. 

If  war  be  actually  levied,  that  is,  if  a body  of  men  be  actually 
assembled  for  the  purpose  of  effecting  by  force  a treasonable  pur- 
pose, all  who  perform  any  part,  however  minute,  or  however 
remote  from  the  scene  of  action,  and  who  are  actually  leagued 
in  the  general  conspiracy,  are  to  be  considered  as  traitors.  But 
there  must  be  an  actual  assemblage  of  men  for  the  treasonable 
purpose,  to  constitute  a levy  of  war.  {Ex  parte  Bollman,  4 Cr.  126 ; 
United  States  v.  Burr,  4 Cr.  469-508  ; Sergts.  Const,  ch.  30  [32]  ; 
People  v.  Lynch,  1 John.  553.) 

And  further,  for  the  definition  of  treason,  see  United  States  v. 
Hoxie,  1 Paine,  265;  United  States  v.  Hanway,  2 Wallace,  Jr. 
139  ; Regina  v.  Frost,  9 C.  & P.  129  ; 2 Bishop  on  Cr.  Law,  § 1032. 

Treason  is  a breach  of  allegiance,  and  can  be  committed  by  him 
only,  who  owes  allegiance  either  perpetual  or  temporary.  United 
States  v.  Willberger,  5 Wheat.  97. 

iilG.  Two  Witnesses. — The  evidence,  it  seems,  refers  to  the 
proofs  on  trial,  and  not  to  the  preliminary  hearing  before  the  com- 
mitting magistrate,  or  the  proceeding  before  the  grand  inquest. 
United  States  v.  Hanway,  2 Wall.  Jr.  138;  1 Burr’s  Trial,  196. 
But  see  Fries’s  Trial,  14  Whart.  St.  Tr.  480,  and  the  same  in  2 
pamphlet,  171. 

There  must  be,  as  there  should  be,  the  concurrence  of  two  wit- 
nesses to  the  same  overt  act,  that  is,  opeu  act  of  treason,  who  aro 


Cl.  1,  2.] 


TREASON,  217,  218. 


213 


above  all  reasonable  exception.  (United  States  v.  Burr,  4 Cr.  469, 

496,  503,  505,  506,  607;  Greenleaf’s  Ev.  § 237.) 

[2.]  The  Congress  shall  have  power  to  declare  the  whatis  the 
punishment  of  treason,  but  no  attainder  of  treason  on  the 
shall  work  corruption  of  blood,  or  forfeiture,  except  mentf 
during  the  life  of  the  person  attainted. 

217.  Punishment  of  Treason. — Punishment  is  the  penalty  of  Define 
the  law,  inflicted  after  judgment  or  sentence.  For  the  English 
punishment  of  treason,  see  Story’s  Const.  § 1298,  and  notes. 

The  punishment  was  first  declared  by  Congress  to  be  death  by 
hanging.  Act  of  30th  April,  1790,  ch.  36,  1 St.  112,  § 1,  note  (a). 

It  is  now  death  or  imprisonment.  Act  of  17th  January,  1862, 

12  St.  589,  590.  See  1 Brightly’s  Digest,  201,  § 1,  notes  a to  h; 

Wharton’s  Criminal  Laws,  § 1117-1120;  Id.  2719-2736;  2 Bright- 
ly, 100,  101. 

Attainder  of  Treason. — See  Bill  of  Attainder,  note  142.  142- 

“ Corruption  of  Blood.” — By  corruption  of  blood  all  inheritable  Define 
qualities  are  destroyed ; so  that  an  attainted  person  can  neither  £f  ^ood?n 
inherit  lands  nor  other  hereditaments  from  his  ancestors,  nor  re- 
tain those  he  is  already  in  possession  of,  nor  transmit  them  to  any 
heir.  Story’s  Const.  § 1299,  1300;  4 Bl.  Com.  381-388. 

The  power  of  punishing  treason  against  the  United  States  is 
exclusively  in  Congress.  (The  People  v.  Lynch,  11  Johns.  553 ; 

Rawle’s  Const,  ch.  11,  pp.  140-143  ; Id.  ch.  21,  p.  207  ; Sergeant’s 
Const,  ch.  30  [ch.  32.] ; Story’s  Const.  § 1301. 

Article  XV. 

Sec.  I. — Full  faith  and  credit  shall  be  given  in  each  what^credit 
State  to  the  public  acts,  records,  and  judicial  proceed  given  to 
ings  of  every  other  State.  And  the  Congress  may-&c.? 
by  general  laws,  prescribe  the  manner  in  which  such  462-467. 
acts,  records,  and  proceedings  shall  be  proved,  and  who  may 

, ~ n prescribe 

the  effect  thereof.  the  proofs? 

218.  “Full  Faith  and  Credit,”  as  the  cases  cited  will  show,  Define  full 
means  that  credit,  which  the  State  itself  gives,  not  to  the  mode  of  faith? 
proof,  but  to  the  acts  when  proven. 

“ Public  Acts.” — This  has  reference  to  the  legislative  acts  and  Public 
resolves  ; that  is,  to  the  laws  of  the  State.  acts  ? 

“ Records  ” are  the  registration  of  deeds  or  the  civil  law  records  Records? 
of  titles,  as  in  Louisiana,  the  registration  of  wills,  public  docu- 
ments, archives,  legislative  journals;  and,  in  fact,  all  acts,  legis- 
lative, executive,  judicial,  and  ministerial,  which  constitute  the 
public  records  of  a State.  McGrew  v.  Watrous,  16  Tex.  509,  512  ; 

White  v.  Burnley,  20  How.  250 ; Paschal’s  Annotated  Digest,  Art. 

3710,  note  835.  Define 

Judicial  Proceedings  are  the  proceedings  and  judgments  p^oceed- 
which  appertain  to  courts  of  record.  ings  ? 


214 


JUDGMENTS,  218. 


[Art.  IV., 


What  is  the 
rule  where 
jurisdiction 
has  at- 
tached ? 


What  is  the 
effect  of  a 
judgment? 


Where  the  jurisdiction  has  attached,  the  judgment  is  conclusive 
for  all  purposes,  and  is  not  open  to  any  inquiry  upon  the  merits. 
(Bissell  v.  Briggs,  9 Massachusetts,  462  ; United  States  Bank  v. 
Merchants’  Bank,  7 Grill,  430.)  Christmas  v.  Russel,  5 Wall.  302. 
“ If  a judgment  is  conclusive  in  the  State  where  it  was  pronounced, 
it  is  equally  conclusive  everywhere”  in  the  courts  of  the  United 
States.  (Story’s  Const.  § 1313,  3d  ed.)  Id.  302.  By  that  statute 
(of  Mississippi)  it  was  enacted  that  “ no  action  shall  be  maintained 
on  any  judgment  or  decree  rendered  by  any.  court  without  this 
State,  against  any  person  who,  at  the  time  of  the  commencement 
of  the  action  in  which  such  judgment  or  decree  was  or  shall  be 
rendered,  was  or  shall  be  a resident  of  this  State,  in  any  case 
where  the  cause  of  action  would  have  been  barred  by  any  act  of 
limitation  of  this  State,  if  such  suit  had  been  brought  therein.” 
(Mississippi  Code,  400.)  This  act  was  unconstitutional.  Christ- 
mas v.  Russel,  5 Wall  299,  302.  Had  it  been  an  act  merely  limit- 
ing the  time  within  which  the  suit  should  be  brought,  it  would 
have  been  constitutional.  (McElmoyle  v.  Cohen,  13  Pet.  312.)  Id. 
300. 

A judgment  of  a State  court  has  the  same  credit,  validity,  and 
effect  in  every  other  court  within  the  United  States,  which  it  had  in 
the  State  where  it  was  rendered.  Hampton  v.  McConnell,  3 Wh. 
234;  Sarchet  v.  The  Davis,  Crabbe,  185.  And  it  matters  not  that 
it  was  commenced  by  an  attachment  of  property,  if  the  defendant 
afterward  appeared  and  took  defense.  Mayhew  v.  Thatcher,  6 
Wh.  129.  Nor  that  the  service  was  illegal.  Houston  v.  Dunn,  13 
Tex.  480.  Such  judgments,  as  far  as  the  court  rendering  them  had 
jurisdiction,  are  to  have,  in  all  courts,  full  faith  and  credit;  and  the 
merits  of  the  judgment  are  never  put  in  issue,  with  the  qualification, 
that  it  must  appear  by  the  record  that  the  party  had  notice.  Ben- 
ton v.  Bergot,  10  S.  & R.  242.  They  have  not,  however,  by  the 
act  of  Congress,  full  power  and  conclusive  effect,  but  only  such 
effect  as  they  possessed  in  the  State  where  the  judgment  was  ren- 
dered. Green  v.  Sarmiento,  3 Wash.  C.  C.  17  ; Bank  of  the  State  of 
Alabama  v.  Dalton,  9 How.  528.  And  therefore,  whatever  pleas 
would  be  good  therein,  in  such  State,  and  none  others,  can  be 
pleaded  in  any  other  court  within  the  United  States.  Hampton  v. 
McConnell,  3 Wh.  234;  Mills  v.  Duryee,  7 Cr.  484.  Thus,  it  would 
be  competent  to  show  that  the  judgment  was  obtained  by  fraud,  or 
that  the  court  rendering  it  had  no  jurisdiction.  Warren  Manufac- 
turing Co.  v.  Etnsf  Insurance  Co.  2 Paine,  502 ; Steele  v.  Smith,  7 
W.  & S.  447  ; Drinkard  v.  Ingram,  21  Tex.  653.  This  has  been 
denied  as  to  fraud  between  parties  and  privies.  Christmas  v.  Rus- 
sel, 5 Wall.  505-508.  But  not  to  litigate  the  merits  of  the  judg- 
ment. Ingram  v.  Drinkard,  14  Tex.  352.  When  the  judgment  of 
a sister  State  is  produced,  which  was  rendered  by  a court  of  general 
jurisdiction,  the  presumption  is  in  favor  of  the  power  and  jurisdic- 
tion until  the  contrary  appears.  (Scott  v.  Coleman,  5 Littel.  350; 
Mills  v.  Martin,  19  Johns.  33;  3 Wend.  267  ; 4 Cow.  282  ; 6 Wend. 
447;  8 Cow.  311;  Phillips’s  Evid.,  Cow.  & Hill’s  Notes,  vol.  5. 
p.  896,  note  639.)  And  the  plaintiff  need  not  aver  aud  prove  the 
jurisdiction.  Reid  v.  Boyd,  13  Tex.  24*2.  Where  the  writ  was  a 


Sec.  l.J 


JUDGMENTS,  218. 


215 


capias  ad  respondendum , and  the  return  was,  “ executed  personally,”  462-467. 
it  was  prima  facie  evidence  of  service.  Reid  v.  Boyd,  13  Tex.  242, 

243.  If  there  has  been  no  personal  service,  and  if  the  defendant 
has  not  appeared  and  taken  defense,  the  judgment  of  a sister  State 
will  not  support  an  action.  Notice  or  appearance  is  essential  to 
the  jurisdiction.  Webster  v.  Reid,  11  How.  460;  Nations  v.  John- 
son, 24  How.  208.  Notice  by  publication  is  not  sufficient.  Bos- 
well’s Lessee  v.  Otis,  9 How.  350  ; Oakley  v.  Aspinwall,  4 Comst. 

135  ; Mills  v.  Duryee,  *7  Cr.  481 ; McElmoyle  v.  Cohen,  13  Pet.  330. 

And  see  the  notes  in  American  Leading  Cases,  vol.  2,  p.  551 ; 3 
Phillips’s  Ev.,  Cow.  & Hill’s  Notes,  p.  353,  note  636. 

If  a court  of  any  State  should  render  judgment  against  a man  what  is  the 
not  wfithin  the  State,  nor  bound  by  its  laws,  lior  amenable  to  the  effect  of 
jurisdiction  of  the  court,  if  that  judgment  should  be  produced  in  f 

another  State,  against  the  defendant,  the  jurisdiction  of  the  court J 
might  be  inquired  into  ; and  if  a want  of  jurisdiction  appeared,  no  467. 
credit  would  be  given  to  the  judgment.  Bissell  v.  Briggs,  9 Mass. 

462;  Green  v.  Sarmiento,  1 Pet.  C.  C.  20:  Hall  v.  Williams,  6 Pick. 

232  ; Woodward  v.  Tremere,  9 Pick.  355;  Schaffer  v.  Yates,  2 
Mon.  253  ; Batwick  v.  Hopkins,  4 Ga.  48  ; Towns  (Gov.)  v.  Springer, 

9 Ga.  132 ; The  Central  Bank  of  Georgia  v.  Gibson,  11  Ga.  455 ; 

Darcy  v.  Ketchum,  11  How.  165.  And  the  judgment  may  be 
shown  to  be  void,  collaterally,  for  want  of  personal  service.  Web- 
ster v.  Reid,  11  How.  460;  Gleason  v.  Dodd,  4 Met.  333 ; Lincoln 
v.  Trevor,  2 McLean,  473.  Where  the  original  process  was  attach- 
ment and  publication,  and  no  personal  service,  and  judgment  was  ren- 
dered in  California,  and  suit  brought  upon  this  judgment  in  Texas  the 
California  judgment  was  rightly  held  to  be  void.  Green  v.  Custard, 

23  How.  486.  But  where  a suit  was  brought  in  chancery,  in  Mis- 
sissippi, and  the  defendants  were  served  with  process,  and  appeared 
and  answered,  and  the  chancellor  rendered  a decree  dismissing 
the  bill ; and  two  years  afterward,  a writ  of  error  was  prosecuted 
to  the  Supreme  Court,  and  an  affidavit  filed  that  the  defendants  were 
not  within  the  jurisdiction,  and  had  no  counsel  within  the  jurisdiction, 
and  citation  to  appear  and  defend  the  writ  of  error  was  published 
in  a newspaper;  after  which  the  Supreme  Court  reversed  the  judg- 
ment, and  rendered  a decree  against  the  defendants,  which  judg- 
ment was  perfected  by  the  chancellor ; and  upon  this  judgment  suit 
was  brought  in  the  United  States  District  Court  of  Texas : Held, 

that  the  judgment  or  decree  was  not  a nullity,  as  it  would  have 
been  had  there  been  no  original  service.  Nations  v.  Johnson,  24 
How.  203.  Some  of  the  courts  have  strongly  intimated  that  a law 
which  should  make  a judgment,  obtained  without  personal  service, 
the  foundation  of  an  action,  would  be  unconstitutional  and  void. 

And  some  of  them  go  much  further,  and  lay  down  the  rule  as  ap- 
plicable to  the  inception  of  the  suit,  that  notice  by  publication  is 
insufficient  to  support  the  judgment  in  any  jurisdiction,  except  in 
the  courts  of  the  State  where  it  was  rendered.  (Boswell’s  Lessee 
v.  Otis,  9 How.  350  ; Oakley  v.  Aspinwall,  4 Comst.  513.)  Nations 
v.  Johnson,  24  How.  203.  The  publication  in  the  Supreme  Court 
will  be  held  to  be  constructive  service,  provided  the  defendant  was 
served  with  original  process  in  the  lower  court,  and  appeared  and 


216 


JUDGMENTS,  218. 


[Art.  IV., 


466.  467.  took  defense.  Nations  v.  Johnson,  24  How.  203.  A decree  of  a 
court  of  chancery  is  within  this  article  and  the  act  of  Congress  for 
authentication.  Patrick  v.  Gibbs,  17  Tex.  277.  And  this  court  will 
not  look  to  the  formula  of  the  decree,  if  the  parties,  and  the  final 
result  be  certain,  so  that  it  is  a final  judgment  which  could  be 
enforced  in  the  sister  State  from  which  it  came.  (Whiting  v.  The 
Bank,  13  Pet.  6;  Ordinary  v.  McClure,  1 Bailey,  7.)  Patrick  v. 
IIow  may  Owens,  17  Tex.  278.  Judgments  of  foreign  countries  may  be 
aUfo^eio-ntS °f Prove(^ : — By  an  exemplification  under  the  great  seal;  2.  By  a 
country  be  C0Py  proved  to  be  correct ; 3.  By  the  certificate  of  an  officer  author- 
proved?  ized  by  law,  which  certificate  must,  of  itself,  be  properly  authenti- 
cated. (Church  v.  Hubert,  2 Cr.  187.)  Phillips  v.  Lyons,  1 Tex. 
394. 

Define  the  The  “ Great  Seal  ” means  the  seal  of  the  nation,  whether  the 
great  seal?  country  be  a monarchy  or  a republic.  Phillips  v.  Lyons,  1 Tex. 

394.  The  seal  of  one  of  the  States  of  the  American  Union,  is  not 
the  “ Great  Seal.”  Id.;  Wellborn  v.  Carr,  Id.  469. 

What  is  the  In  a suit  upon  a judgment  obtained  in  courts  other  than  the 
limitation  courts  of  the  State,  the  limitation  prescribed  by  the  law  of  the 
ments?U  g"  forum  will  bar  the  action,  although  the  period  be  shorter  than  that 
prescribed  for  judgments  of  the  State  where  the  suit  was  brought. 
McElmoyle  v.  Cohen,  13  Pet.  312  ; Story’s  Conflict  of  Laws,  § 582 ; 
Robinson  v.  Peyton,  4 Tex.  278;  Pryor  v.  Moore,  8 Tex.  252; 
Bacon  v.  Howard,  20  How.  23.  First,  that  the  statute  of  limitations 
of  Georgia  can  be  pleaded  to  an  action  in  that  State,  founded  upon 
a judgment  rendered  in  the  State  of  South  Carolina;  and,  secondly, 
that  in  the  administration  of  assets  in  Georgia,  a judgment  rendered 
in  South  Carolina,  upon  a promissory  note  against  the  intestate 
when  in  life,  should  not  be  paid  in  preference  to  simple  contract 
debts.  Mills  v.  Duryee;  McElmoyle  v.  Cohen,  13  Pet.  330.  Af- 
firmed in  a Texas  case.  Bacon  v.  Howard,  20  How.  25.  There  is 
no  clause  in  the  Constitution  which  restrains  this  right  in  each  State 
to  legislate  upon  the  remedy  in  suits  on  judgment  of  other  States, 
exclusive  of  all  interference  with  their  merits.  Id.  The  act  of  the 
congress  of  Texas,  of  25th  June,  1845,  which  prescribed  the  time 
within  which  suits  on  judgments  rendered  in  foreign  States  should 
be  brought,  having  been  passed  before  annexation,  was  not  subject 
to  this  provision  of  the  Constitution  of  the  United  States;  but  if  it 
had  been,  the  law  would  not  have  been  unconstitutional.  Robinson 
v.  Peyton,  4 Tex.  278;  Pryor  v.  Moore,  8 Tex.  250;  Bacon  v. 
Howard,  20  How.  22.  It  has  been  held,  under  the  Texas  statute 
of  limitations,  that  the  same  rule  applies  to  a judgment  of  a sister 
State  as  to  a judgment  of  this  State.  (Olay  v.  Clay,  13  Tex.  195; 
Allison  v.  Nash,  1G  Id.  560.)  Spann  v.  Crummerford,  20  Tex.  220. 
Are  tho  Judgments  of  another  State  are  not  prima  facie , but  conclusive 

judgments  evidence  of  debt.  They  can  be  impeached  on  such  grounds  only  as 
ortonciu-  wou^  good  against  a judgment  of  a sister  State.  Clay  v.  Clay, 
bivo  y 1 3 Tex.  204.  Tho  judgments  rendered  before  a justice  of  the  peace 
of  a sister  State,  are  not  judgments  of  courts  of  record  within  this 
article,  unless  it  be  averred  and  proved  that  the  State  law  had  made 
them  so.  Beal  v.  Smith,  14  Tex.  309.  The  opinion  reviews  the 
authorities  in  Cowen  & Hill’s  Notes  to  Phillips’s  Evidence,  Part  2, 


Sec.  l.j 


JUDGMENTS,  218. 


217 


note  58.  And  see  Grant  v.  Bledsoe,  20  Tex.  458;  Thomas  v.  Rob-  467. 
inson,  3 Wend.  267. 

The  legislation  of  Congress  amounts  to  this : that  the  judgment  what  does 
of  another  State  shall  be  record  evidence  of  the  demand ; and  that  ^ legisla- 
the  defendant,  when  sued  on  the  judgment,  cannot  go  behind  it  and  ^°?n  amoun 
controvert  the  contract  or  other  cause  of  action  on  which  the  judg- 
ment is  founded;  that  it  is  evidence  of  an  established  demand, 
which,  standing  alone,  is  conclusive  between  the  parties  to  it. 

(Bank  of  the  State  of  Alabama  v.  Dalton,  9 How.  528.)  Norwood 
v.  Cobb,  20  Tex.  594. 

They  certainly  are  not  foreign  judgments ; nor  are  they  domestic  Are  the 
judgments  in  every  sense,  because  they  are  not  the  proper  founda-.iud£ment8 
tion  of  final  process,  except  in  the  State  where  they  were  rendered,  domestic1? 
Besides,  they  are  open  to  inquiry  as  to  the  jurisdiction  of  the  court 
and  notice  to  the  defendant ; but  iu  all  other  respects  they  have  the 
same  faith  and  credit  as  domestic  judgments. 

Subject  to  those  qualifications,  the  judgment  of  a State  court  is 
conclusive  in  the  courts  of  all  the  other  States  wherever  the  same 
matter  is  brought  in  controversy.  The  established  rule  is,  that  so 
long  as  the  judgment  remains  in  force  it  is  of  itself  conclusive  of 
the  right  of  the  plaintiff  to  the  thing  adjudged  in  his  favor,  and 
gives  him  a right  to  process,  mesne  or  final,  as  the  case  may  be, 
to  execute  the  judgment.  D’Arcy  v.  Ketchum  et  al  11  Howard, 

165 ; Webster  v.  Reid,  Id.  437  ; Yoorhees  v.  United  States  Bank, 

10  Peters,  449;  Huff  v.  Hutchingson,  14  Howard,  558;  Christmas 
v.  Russel,  5 Wall.  305 ; Benton  v.  Bargot,  10  Sergt.  & Rawle, 

240. 

To  render  a defense,  or  plea  to  the  judgment  of  another  State 
good,  it  must  go  sufficiently  far  to  negative  the  reasonable  intend- 
ment which  exists,  prima  facie,  in  favor  of  the  jurisdiction,  and  of 
the  regularity  of  the  proceedings.  (Shumway  v.  Stillman,  4 Cow. 

296;  6 Wend.  447  ; Holt  v.  Alloway,  2 Blackford,  108;  Welch  v. 

Sykes,  3 Gil.  197 ; Moreland  v.  Trenton  Ins.  Co.  4 Zabriskie,  222; 

Latterett  v.  Cooke,  1 Clarke,  1;  Black  v.  Black,  4 Brad.  174; 

Bissell  v.  Wheelock,  11  Cush.  277  ; Buchanan  v.  Post,  5 Ind.  264.) 

1 Smith’s  Leading  Cases,  Part  2,  pp.  1026,  1027. 

It  is  now  well  settled  that  judgments  of  one  State  of  the  Union  on  what 
may  be  controverted  in  another,  on  the  ground  that  the  court  ground  may 
which  pronounced  them  did  not  obtain  jurisdiction  over  the  parties  8 

by  due  service  of  process  or  notice.  (Reed  v.  Wright,  2 Iowa,  15  ; trolled? 

2 Am.  Leading  Cases,  798,  4th  ed. ; Price  v.  Ward,  1 Dutcher, 

225;  Smith  v.  Smith,  17  111.  482;  Rape  v.  Heaton,  9 Wis.  328^ 

Black  v.  Black,  4 Brad.  174;  Wright  v.  Boynton,  37  N.  H.  9; 

Judkins  v.  Union  Life  Ins.  Co.  Id.  470;  McLaurine  v.  Monroe,  30 
Mo.  462.)  1 Smith’s  Leading  Cases,  Part  2,  p.  1025.  This  may 

be  not  only  proven  in  opposition  to  the  record,  but  also  against  its 
averments.  Id.  Baltzell  v.  Nosier,  1 Clarke,  588;  Gleason  v.  Dodd, 

4 Met.  335 ; Carle  ton  v.  Bickford,  13  Gray,  591 ; Norwood  v. 

Cobb,  15  Tex.  500 ; S.  C.  24  Tex.  551 ; Brinder  v.  Dawson,  1 Scam- 
mon,  541.  But,  contra , see  Pritchet  v.  Clark,  5 Harrington,  63 ; 

Westcott  v.  Brown,  15  Ind.  83;  Rowe  v.  Hackett,  2 Bosworth, 

19 


218 


AUTHENTICATION,  219. 


[Art.  IV., 


467. 


How  are 
acts  of  the 
legislature 
authenti- 
cated ? 

Act  of 
May  26, 
1790,  1 St. 
.122. 


Judicial 

proceed 

ings? 


What  does 
the  seal  of 
State 
import  ? 

218. 


How  are 
judgments 
proved  ? 

218. 


Who  must 
certify  the 
clerk’s  sig- 
nature ? 


579  ; Lapham  v.  Briggs,  1 Williams,  29 ; Bank  of  North  America  v. 
Wheeler,  24  Conn.  433. 

219.  Congress  may  prescribe  the  Manner  of  Proving. — 
The  mode  of  proof  prescribed  under  this  clause  has  been  as  fol- 
lows : — 

“ The  acts  of  the  legislatures  of  the  several  States  shall  be 
authenticated  by  having  the  seal  of  their  respective  States  af- 
fixed thereto  : That  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted  in  any  other  court 
within  the  United  States,  by  the  attestation  of  the  clerk,  and  the 
seal  of  the  court  annexed,  if  there  be  a seal,  together  with  a cer- 
tificate of  the  judge,  chief-justice,  or  presiding  magistrate,  as  the 
case  may  be,  that  the  said  attestation  is  in  due  form.  And  the 
said  records  and  judicial  proceedings,  authenticated  as  aforesaid, 
shall  have  such  faith  and  credit  given  to  them,  in  every  court 
within  the  United  States,  as  they  have,  by  law  or  usage,  in  the 
courts  of  the  State  from  whence  the  said  records  are  or  shall  be 
taken.”  Paschal’s  Annotated  Dig.,  Art.  3709. 

The  seal  of  the  State  imports  absolute  verity.  The  United 
States  v.  Amedy,  11  Wheat.  407 ; The  United  States  v. 
Johns,  4 Dali.  416.  And  is  prima  facie  evidence  that  the  officer 
wdio  used  it  had  competent  authority  to  act.  No  other  authentica- 
tion is  necessary  than  the  seal  of  the  State.  Id.  The  usual  attes- 
tation of  the  enactment  and  signature  is  not  necessary.  United 
States  v.  Amedy,  11  Wheat.  408.  It  is  sufficient  that  their  exist- 
ence and  time  of  enactment  is  shown.  Id.  It  must  be  certified 
under  the  seal  of  the  State.  Craig  v.  Brown,  Pet.  C.  C.  354.  The 
laws  of  a State  may  be  thus  certified  and  proved.  But  private 
laws,  and  special  proceedings  of  a judicial  character,  are  matters  of 
fact,  and  must  be  proven  in  the  ordinary  manner.  Leland  v.  Wilk- 
inson, 6 Pet.  317,  322.  A statute  book  of  a State,  in  the  State  De- 
partment at  Washington,  may  be  read  as  evidence  of  the  law.  The 
Commercial  & Farmers’  Bank  of  Baltimore  v.  Patterson,  2 Cr.  C.  C. 
347. 

Under  the  Constitution  and  this  section,  a judgment  recovered  in 
any  State  of  the  Union,  before  a court  of  competent  jurisdiction, 
upon  due  notice  to  the  defendant,  is  not  to  be  regarded  in  any  other 
Stateas  a foreign , but  as  a domestic  judgment,  throughout  the  United 
States,  so  far  as  to  give  it  the  same  effect  in  every  other  State. 
Baxley  v.  Dinah,  27  Penn.  State  R.  (4  Harris),  242,  247.  And  the 
State  court  will  take  notice  of  the  local  laws,  upon  which  the  judg- 
ment was  rendered,  in  the  same  manner  as  the  Supreme  Court  of 
the  United  States  does.  (7  Cr.  408;  3 Wheat.  234;  Baxley  v. 
Dinah,  27  Penn.  State  R.  (4  Harris),  243.)  State  of  Ohio  v. 
Hinchman,  27  Penn.  State  R.  (4  Harris),  483;  Rogers  v.  Burns,  Id. 
526.  And  if  the  certificate  state  that  it  is  in  “due  form,”  it  mat- 
ters not  that  the  judge  and  the  clerk  of  the  probate  court  were  the 
same  person.  Id.  But  as  a surrogate  acts  as  a clerk,  in  certifying 
his  proceedings,  and  as  he  also  acts  in  the  capacity  of  judge,  he 
must  certify  as  to  the  authentication.  (Catlin  v.  Underhill,  4 Mc- 
Lean, 190.)  Ohio  v.  Hinchman,  27  Penn.  State  R.  484.  So  that  it 
results  that  when  the  judgment  of  a court  of  record  is  proved  under 


Sec.  1.] 


AUTHENTICATION,  219. 


219 


the  act  of  Congress,  the  court  where  it  is  produced  will  take  the  466. 
same  notice  of  the  laws  of  the  State  from  which  it  comes,  that  the 
court  which  rendered  the  judgment,  or  the  Supreme  Court  of  the 
United  States  would  take.  Id.  This  rule  seems  only  to  apply  to 
courts  of  general  jurisdiction.  1 Greenl.  Ev.  § 506.  It  does  not 
apply  to  judgments  rendered  before  a justice  of  the  peace,  when  not 
courts  of  record.  (Cow.  & Hill’s  Notes  to  Phillips’s  Ev.  Part  2, 
note  58.)  Beal  v.  Smith,  14  Tex.  309 ; Grant  v.  Bledsoe,  20  Tex; 

458;  Snyder  v.  Wyse,  10  Barr,  151 ; Warren  v.  Elagg,  2 Pick.  448; 

Robinson  v.  Prescott,  4 N.  H.  450;  Mahuren  v.  Blackford,  6 N.  H. 

567 ; Silver  Lake  Bank  v.  Harding,  5 Ohio,  545  ; Thomas  v.  Robin- 
son, 3 Wend.  267.  Unless  they  be  courts  of  record.  Bissell  v. 

Edwards,  5 Day,  363 ; Blodget  v.  Jordan,  6 Term.  580 ; Stark- 
weather v.  Loomis,  2 Yerm.  573;  Scott  v.  Cleveland,  3 Monr.  62. 

But  the  proceedings  of  courts  of  chancery  and  probate,  as  well  as  How  may 
of  common  law,  may  be  thus  proved.  State  of  Ohio  v.  Hinchman,  chancery 
27  Penn.  State  R.  (4  Harris),  243 ; Scott  v.  Blanchard,  8 Mart.  (N.  be°proved? 
S.)  106;  Balfour  v.  Chew,  5 Id.  517  ; Johnson  v.  Runnells,  6 Id. 

621;  Ripple  v.  Ripple,  1 Rawle,  381  ; Craig  v.  Brown,  Pet.  C.  C. 

352;  Hunt  v.  Lyle,  8 Yerg.  142;  Barbour  v.  Watts,  2 A.  K. 

Marsh,  290,  293.  Other  judicial  proceedings  besides  judgments  are 
included.  Hopkins  v.  Ludlow,  Phila.  R.  272. 

“ Op  any  State,”  does  not  apply  to  the  records  of  the  courts  of  What  means 
the  United  States.  Mason  v.  Lawrence,  1 Cr.  C.  C.  190.  But  the 
same  rule  of  proof  is  applicable  to  these  courts.  Tucker  v.  Thomp-  a e 
son,  3 McLean,  94.  And  may  be  proved  by  like  certificates.  Bu- 
ford v.  Hickman,  Hemp.  232.  This  method  of  proof  is  not  exclu- 
sive of  any  other  which  the  States  may  prescribe.  Ohio  v.  Hinch- 
man, 24  Penn.  State  R.  485;  Kean  v.  Rice,  12  S.  & R.  203,  208: 

Raynham  v.  Canton,  3 Pick.  293 ; The  State  v.  Stade,  1 D.  Chipm. 

303;  Biddle  v.  James,  6 Binn.  321;  Ex  parte  Poval,  3 Leigh,  816; 

Ellmore  v.  Mills,  1 Hayw.  359 ; Baker  v.  Jenkins,  2 Johns.  Cases, 

119.  The  clerk  who  certifies  the  record,  must  be  the  clerk  of  the 
same  court,  or  of  its  successor ; the  certificate  of  his  under  clerk, 
in  his  absence,  or  the  clerk  of  any  other  court  or  tribunal,  is  insuf- 
ficient. Sampson  v.  Overton,  4 Bibb,  409 ; Lathorp  v.  Blake,  3 
Barr,  405 ; Donahoo  v.  Brannon,  1 Overton,  328 ; Schnertzell  v. 

Young,  3 H.  & McHen.  502.  Where  the  clerk  certified  under  the 
seal  of  the  court,  that  he  was  clerk  ; and  the  judge  certified  that 
his  attestation  was  in  due  form,  no  other  evidence  of  the  usual 
form  of  attestation  can  be  received.  Harper  v.  Nichol,  13  Tex. 

161.  When  the  court  has  no  seal,  the  fact  should  be  certified  by 
the  court  or  the  judge.  Craig  v.  Brown,  Pet.  C.  0.  353.  The  seal 
must  be  annexed  to  the  record  itself;  not  to  the  judge’s  certificate.  What  judge 
Turner  v.  Waddington,  3 W.  C.  C.  126.  The  certificate  to  the  mus.t 
clerk’s  attestation  must  be  given  by  th e judge,  if  there  be  but  one  ; certlv? 
or  if  there  be  more  than  one,  then  by  the  chief-justice  or  presiding 
judge  or  magistrate  of  the  court  from  whence  the  record  comes ; and 
he  must  possess  that  character  at  the  time  he  gives  the  certificate. 

A certificate  that  he  is  the  judge  who  presided  at  the  time  of  the 
trial,  or  that  he  is  the  senior  judge  of  the  courts  of  law  in  the 
State,  is  deemed  insufficient.  Lathorp  v.  Blake,  3 Barr,  496; 

Stephenson  v.  Bannister,  3 Bibb,  369  ; Kirkland  v.  Smith,  2 Mart. 


220 


AUTHENTICATION,  219. 


[Art.  IV., 


Certificate.  (N.  S.)  407.  And  so  is  the  certificate  of  the  judge,  styling  him- 
self  “ one  of  the  judges  of  the  court.”  Stewart  v.  Gray,  Hemp. 
What  must  94;  Catlin  v.  Underhill,  4 McLean,  199.  The  certificate  of  the 
cate°of  lthe  Juc^e  mus^  state  that  the  attestation  of  the  clerk  is  in  due  form, 
judge  state?  Wigg  v.  Conway,  Hemp.  538.  Which  means,  the  form  of  attesta- 
tion used  in  the  State  from  whence  the  record  comes.  Craig  v. 
Brown,  Pet.  C.  C.  354.  And  such  certificate  of  the  judge  is  indis- 
pensable and  conclusive.  Ferguson  v.  Harwood.  7 C.  R.  408 ; 
Tooker  v.  Thompson,  3 McLean,  33;  Taylor  v.  Carpenter,  2 W,  & 
M.  4.  That  the  “ signature  is  in  the  clerk’s  handwriting,”  is  not 
sufficient.  Craig  v.  Brown,  Pet.  C.  C.  352.  Where,  however,  the 
record  of  a judgment  of  a State  court  is  offered  in  evidence  in  a 
circuit  court  sitting  in  the  same  State,  the  certificate  of  the  clerk, 
and  seal  of  the  court,  is  a sufficient  authentication.  Mewster  v. 
Spaulding,  6 McLean,  24. 

What  A judgment  of  a State  court  has  the  same  validity,  credit, 

thei^ud"lia8  an<*  e^ect>  *n  evei7  other  cotirt  within  the  United  States,  that 
menu  it  had  in  the  State  wherein  it  was  recovered ; and  whatever 
218.  pleas  would  be  good  in  a suit  thereon,  and  none  others,  can  be 
pleaded  in  any  other  court  within  the  United  States.  Hampton 
v.  McConnell,  3 Wheat.  234;  Mills  v.  Duryee,  7 Cranch,  481; 
Westerwelt  v.  Lewis,  2 McLean,  511 ; Warren  Manuf.  Co.  v. 
HStna  Ins.  Co.  2 Paine,  502;  2 Am.  Leading  Cases,  774.  But  the 
State  may  enact  statutes  of  limitation,  barring  such  judgment  in 
their  courts.  McElmoyle  v.  Cohen,  13  Pet.  312 ; Bank  State  of 
Ala.  v.  Dalton,  9 How.  522.  There  must  have  been  personal  ap- 
pearance, or  service  of  process.  D’Arcy  v.  Ketcham,  11  How. 
165 ; Rogers  v.  Burns,  24  Penn.  State  R.  (3  Casey),  525.  Where 
judgment  was  rendered  in  a sister  State  against  an  ancillary  ad- 
ministrator, it  is  no  foundation  for  an  action,  in  Texas,  against  the 
administrator  or  heir  of  the  same  estate.  (Story’s  Conflict  of  Laws, 
3d  ed.  § 522;  Lightfoot  v.  Birkley,  2 Rawle,  431,  436-7.)  Jones 
What  faith  v.  Jones,  15  Tex.  464.  The  record,  when  duly  authenticated, 
and  credit  ? shall  have  in  every  other  court  of  the  United  States  the  same  faith 
and  credit  as  it  has  in  the  State  court  from  whence  it  was  taken.” 
(Mills  v.  Duryee,  7 Cr.  483)  Christmas  v.  Russell,  5 Wall.  302. 

Is  nil  debet  Ml  debet  is  not  a good  plea  to  such  a judgment.  Id.  304. 
a good  plea?  Hor  is  fraud  as  to  the  promise  on  which  the  judgment  was  ob- 
tained ; nor  the  manner  of  obtaining  it.  (Bank  of  Australasia  v. 
Nias,  4 Eng.  Law  and  Eq.  252.)  Id. ; Granger  v.  Clark,  22  Maine, 
130;  Anderson  v.  Anderson,  8 Ohio,  108.  They  cannot  be  at- 
tacked collaterally  by  the  parties  and  privies  to  the  record.  B.  & 
W.  Railroad  v.  Sparhawk,  1 Allen,  448 ; Homer  v.  Fish,  1 Picker- 
ing, 435 ; McRae  v.  Mattoon,  13  Pickering,  57  ; Atkinsons  v. 
Allen,  12  Vermont,  624;  Christmas  v.  Russel,  5 Wall.  306.  That 
is  where  it  appears  that  the  court  had  jurisdiction  of  the  cause, 
and  that  the  defendant  was  duly  served  with  process,  or  appeared 
and  made  defense.  (Hampton  v.  McConnel,  3 Wheaton,  332;  Na- 
tions et  al.  v.  Johnson  et  al.  24  Howard,  203;  D’Arcy  v.  Ketchum, 
11  Id.  165;  Webster  v.  Reid,  Id.  460.)  5 Wall.  302.  The  rule  is 

undeniable  that  the  judgment  or  decree  of  a court  possessing  com- 
petent jurisdiction  is  final,  not  only  as  to  the  subject  thereby  de- 


Sec.  1.] 


AUTHENTICATION,  219. 


221 


termined,  but  as  to  every  other  matter  which  the  parties  might  Conclusive, 
have  litigated  in  the  cause,  and  which  they  might  have  had  de- 
cided. (Dobson  v.  Pearce,  2 Kernan,  165.  Hollister  v.  Abbott, 

11  Poster,  448;  Rathbone  v.  Terry,  1 Rhode  Island,  77  ; Topp  v. 

The  Bank,  2 Swan,  188 ; Wall  v.  Wall,  28  Mississippi,  413.) 

Christmas  v.  Russell,  5 Wall.  307. 

“ 1.  From  and  after  the  passage  of  this  act,  all  records  and  ex- Act  of 
emplifications  of  office  books,  which  are  or  may  be  kept  in  any^arck27, 
public  office  of  any  State,  not  appertaining  to  a court,  shall  be^jg4,  Stat 
proved  or  admitted  in  any  other  court  or  office  in  any  other  State, 
by  the  attestation  of  the  keeper  of  the  said  records  or  books,  and 
the  seal  of  his  office  thereto  annexed,  if  there  be  a seal,  together  what  is  tne 
with  a certificate  of  the  presiding  justice  of  the  court  of  the  county  mode  of 
or  district,  as  the  case  may  be,  in  which  such  office  is  or  may  t>eStiber°han 
kept;  or  of  the  governor,  the  secretary  of  State,  the  chancellor, judicial 
or  the  keeper  of  the  great  seal  of  the  State,  that  the  said  attes-  records  ? 
tation  is  in  due  form,  and  by  the  proper  officer ; and  the  said  cer- 
tificate, if  given  by  the  presiding  justice  of  a court,  shall  be 
further  authenticated  by  the  clerk  or  prothonotary  of  the  said 
court,  who  shall  certify,  under  his  hand  and  the  seal  of  his  office, 
that  the  said  presiding  justice  is  duly  commissioned  and  qualified  ; 
or  if  the  said  certificate  be  given  by  the  governor,  the  secretary  of 
State,  the  chancellor  or  keeper  of  the  great  seal,  it  shall  be  under 
the  great  seal  of  the  State  in  which  the  said  certificate  is  made. 

And  the  said  records  and  exemplifications,  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to  them  in  every  court 
and  office  within  the  United  States,  as  they  have  by  law  or  usage, 
in  the  courts  or  offices  of  the  State  from  whence  the  same  are  or 
shall  be  taken.”  Paschal’s  Annotated  Digest,  Art.  3710;  1 Bright- 
ly’s  Dig.  p.  266. 

Where  a conveyance  to  lands  in  Texas  was  dated  on  the  14th  How  are 
April,  1838,  and  executed  and  recorded  before  a notary  public 
the  city  of  New  Orleans,  La.,  in  accordance  with  the  laws  of  Louis-  proved? 
iana,  a copy  of  which  was  certified  by  the  notary’s  successor, 
on  the  6th  March,  1851 ; to  which  was  appended  the  certificate  of 
the  judge  of  the  district  court  of  New  Orleans,  that  the  certificate 
was  in  due  form,  and  by  the  proper  officer ; and  the  official  certifi- 
cate of  the  clerk  of  that  court,  that  the  judge  was  such,  the 
authentication  was  in  accordance  with  this  act.  Watrous  v. 

McG-rew,  16  Tex.  509,  512.  See  Paschal’s  Annotated  Digest,  note 
508.  By  that  article  (Ord.  of  22d  January,  1836)  and  the  act 
of  the  provisional  government  of  Texas,  we  take  judicial  notice 
of  the  civil  code  and  Code  of  Practice  of  Louisiana.  W'atrous  v. 

McGrew  (16  Tex.  512),  reviewed  and  affirmed.  White  v.  Burn- 
ley, 20  How.  250.  It  was  a civil  law  conveyance,  made  in  a 
notary’s  book,  and  a copy  furnished  to  the  grantee,  as  a second 
original.  Id.  Sworn  copies  of  records  in  a foreign  country  can 
be  given  in  evidence  when  better  evidence  cannot  be  procured. 

But  that  they  are  records,  must  be  shown  by  other  evidence. 

Bryant  v.  Kelton,  1 Tex.  435,  436.  The  laws  authorizing  the 
record  of  bills  of  sale  in  a foreign  country  (as  Georgia  was  before 
annexation),  and  showing  who  was  the  keeper  of  the  records, 


222 


citizens,  219,  220. 


[Art.  IV.,  Sec.  2, 


466. 


Can  records 
be  proved 
by  second- 
ary evi- 
dence ? 


Act  of 
March  27, 
1804,  2 S.  C. 
208. 


should  also  be  proven.  Id.  So  where  the  record  of  a marriage, 
solemnized  by  a justice  of  the  peace  in  Missouri,  was  certified 
under  this  act,  the  statute  which  authorized  the  justice  to 
solemnize  the  marriage,  should  also  have  been  proven ; as  also 
the  statute  authorizing  the  registration.  Smith  v.  Smith,  1 Tex. 
625,  626.  The  records  are  among  the  public  writings  recognized 
by  the  common  law  invested  with  an  official  character,  and  there- 
fore susceptible  of  proof  by  secondary  means,  but  which  are  not 
of  the  nature  of  judicial  records  or  judgments  ; such  as  acts  and 
orders  of  the  executive  of  a State;  legislative  acts  and  journals  ; 
registers  kept  in  public  offices ; books  which  contain  the  official 
proceedings  of  corporations,  if  the  public  at  large  are  concerned 
with  them;  parish  registers,  and  the  like.  Snyder  v.  Wise,  10 
Barr,  158.  The  certificate  must  state  that  the  attestation  is  in  due 
form,  and  by  the  proper  officer.  Drummond  v.  MeG-ruder,  9 Cr. 
122;  1 Burr’s  Trial,  98. 

“ 2.  All  the  provisions  of  this  act,  and  the  act  to  which  this  is  a 
supplement,  shall  apply,  as  well  to  the  public  acts,  records,  office 
books,  judicial  proceedings,  courts,  and  officers  of  the  respective 
territories  of  the  United  States,  and  countries  subject  to  the 
jurisdiction  of  the  United  States,  as  to  the  public  acts,  records, 
office  books,  judicial  proceedings,  courts,  and  offices  of  the  several 
States.”  Paschal’s  Annotated  Dig.  Art.  3711. 

This  extension  is  a constitutional  exercise  of  the  legislative 
powers  of  Congress.  Hughes  v.  Davis,  8 Maryland,  271. 


Wh*t  are  Sec.  II. — [1.]  The  citizens  of  each  State  shall  be 
leges  of  entitled  to  all  privileges  and  immunities  of  citizens  in 
utizcr.s  geyeral  States. 


Who  are  220.  “ The  Citizens  of  each  State.” — See  Confederation, 
citizens  ? ante ? Art.  IV.  p.  10.  “I  find  no  definition,  no  authoritative  establish- 

274, 17, 18.  ment  of  the  meaning  of  the  phrase  (citizen  of  the  United  States), 
neither  by  a course  of  judicial  decisions  in  our  courts,  nor  by  the 
continued  and  consentaneous  action  of  the  different  branches  of 
our  political  government.”  Bates  on  Citizenship,  3.  10  Op.  383. 
How  many  It  may  be  deduced  from  the  previous  definitions  and  all  the 
claa8*s  <»f  authorities,  that  the  following  classification  of  “ Citizens  ” may 
the^11  S°?  sat^sfy  most  students  : 

’ ‘ 1.  All  white  persons,  or  persons  of  European  descent,  who  were 

What  is  the  ^orn  arU  the  c°l°nies,  or  resided  and  had  been  adopted  there 
rale  as  to  before  1776,  and  who  adhered  to  the  cause  of  independence  up  to 
colonists  of  the  fourth  of  July,  1776.  Paschal’s  Annotated  Digest,  notes  147, 
17*6?^  148,  238,  240,  350;  United  States  v.  Ritchie,  17  How.  538;  Orson 

274-  v.  Hoag,  3 Hill  (N.  Y.),  80-85;  Jackson  v.  White,  20  John,  313; 

277.  Inglis  v.  The  Trustees  of  the  Sailors’  Snug  Harbor,  3 Pet.  99; 

Kelly  v.  Harrison,  20  Johns.  Cases,  29;  Dawson  v.  Godfrey,  4 
Cr.  321 ; Fairfax  v.  Hunter,  7 Cr.  603;  Orr  v.  Hodgson,  4 Wheat. 
453.  The  males  of  these  are  eligible  to  the  Presidency. 

Whflf  of  the  2.  All  the  descendants  of  such  persons,  who  have  since  been 
native  born?  born  in  any  of  those  thirteen  States,  or  in  any  new  State  or  Terri- 
tory of  the  United  States,  or  in  the  District  of  Columbia,  or  abroad, 


01. 1.] 


22n 


CITIZENS,  220. 

since  the  enabling,  acts  of  Congress  (Indians  not  taxed  or  tribal  468, 469. 
Indians  excepted).  That  is,  all  free  white  persons  born  within  50°' 504* 
the  jurisdiction  of  the  United  States,  and  all  born  abroad,  whose 
parents  are  citizens  absent  on  business.  Paschal’s  Annotated 
Digest,  Art.  5410,  Act  of  10th  Feb.  1855;  10  St.  604. 

3.  All  the  free  white  or  European  inhabitants  of  Louisiana,  and  Who  of  the 
the  Creoles  of  native  birth,  residing  there  at  the  time  of  the  pur-  Louisiana 
chase  from  Napoleon  the  First,  by  the  treaty  of  30th  April,  1803, territory  ? 
and  who  remained  in  and  adhered  to  the  United  States,  and  the 
descendants  of  all  such.  6 St.  Art.  III.  p.  202. 

4.  All  the  inhabitants  of  Florida,  at  the  date  of  the  treaty  of  what  of  tho 
cession  of  24th  October,  1819,  who  adhered  to  the  United  States,  inhabitants 
and  remained  in  the  country.  Treaty  with  Spain,  8 St.  p.  256,  of  Florida? 
Art.  VI.  This  included  those  who  had  left  their  native  domiciles, 

and  were  on  their  way  to  Florida  at  the  time  of  the  exchange  of 
flags.  Levy’s  (Yulee’s)  Case.  This  treaty  is  the  law  of  the  land,  19. 

and  admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  priv-  220. 
ileges,  rights,  and  immunities  of  citizens  of  the  United  States. 

(American  Insurance  Company  v.  Carter,  1 Pet.  542,  543;  and  see 
United  States  v.  Gratiot  [4  Pet.  526] ; Cross  v.  Harrison,  16  How. 

189);  S.  C.,  Whiting,  332. 

5.  All  the  free  inhabitants  of  Texas  at  the  date  of  the  annexation  Who  became 

of  that  republic  (29th  December,  1845),  descendants  of  Africans  citizens  by 
and  Indian  tribes  excluded.  9 St.  108;  Paschal’s  Annotated  ^0ena°t?exa‘ 
Digest,  p.  46,  note  159;  Calkin  v.  Cocke,  14  How.  227.  Texas? 

When  the  Congress  of  the  United  States,  under  the  authority  to  what  was 
admit  new  States,  receives  a foreign  nation  into  the  confederacy,  the  effect  of 
the  laws  of  these  respective  nations,  in  relation  to  the  naturaliza-  aa °rexas°n 
tion  of  individual  immigrants,  have  no  application  to  the  respective  upon  citi- 
citizens  of  each.  By  the  very  act  of  union,  the  citizens  of  eachzenship? 
become  citizens  of  the  government  or  governments  formed  by  this 
union.  Cryer  v.  Andrews,  11  Tex.  105.  See  Sabariego  v.  McKin- 229,  93. 
ney,  18  How.  240;  Paschal’s  Annotated  Digest,  notes  148,  237- 
240. 

6.  All  the  inhabitants  of  California  and  other  territory  acquired  Who  of  the 
by  the  treaty  of  Guadalupe  Hidalgo,  on  the  2d  February,  1848  inhabitants 
(St.  929,  Art.  VIII.),  who  remained  and  adhered  to  the  United  2ecame°ciU- 
States.  Sabariego  v.  McKinney,  18  Howard,  289  ; Paschal’s  Anno-  zens? 
tated  Digest,  p.  39,  note  147. 

By  the  plan  of  Iguala,  adopted  by  the  revolutionary  government  Who  were 
of  Mexico,  24th  Feb.,  1821,  it  is  declared  that  “all  inhabitants  of  citizens  of 
New  Spain,  without  distinction,  whether  Europeans,  Africans,  or^exico? 
Indians,  are  citizens  of  this  monarchy,  with  a right  to  be  employed 
in  any  post,  according  to  their  merit  and  virtues  ;”  and  that  '•  the 
person  and  property  of  every  citizen  will  be  respected  and  pro- 
tected by  the  government.”  We  are  also  referred  to  the  treaty 
of  Cordova,  of  24th  August,  1821,  and  the  declaration  of  independ- 
ence of  the  28th  September,  1821,  reaffirming  the  principles  of  the 
plan  of  Iguala.  Also  to  the  decree  of  the  24th  February,  1822,  by 
which  “ the  sovereign  Congress  declares  the  equality  of  civil  rights 
to  all  free  inhabitants  of  the  empire,  whatever  may  be  their  origin 
in  the  four  quarters  of  the  earth.”  Also  to  the  decree  of  the  9th 


224 


CITIZENS,  220. 


[Art.  IV.,  Sec.  2, 


Mexicans. 


Who  of  Ari- 
zona? 


Are  there 
any  by 
special  en- 
actments? 
Who  of  the 
former 
slaves  and 
free  persons 
of  color? 


6,18. 


Who  by 
naturaliza- 
tion? 

93. 

What  rule  as 
to  women  ? 


Who  of  the 
Indian 
tribes  ? 

21,  91,  92. 


274. 


April,  1823,  which  reaffirms  the  three  guaranties  of  the  plan  of 
Iguala,  viz,: — 1.  Independence;  2.  The  Catholic  religion ; 3.  Union 
of  all  Mexicans  of  whatever  race.  The  United  States  v.  Eitchie, 
17  How.  538.  The  decree  of  the  17th  September,  1822,  with  a 
view  to  give  effect  to  the  12th  article  of  the  plan  of  Iguala,  declared 
that  classification  of  the  inhabitants,  with  regard  to  their  origin, 
shall  be  omitted.  Id.  The  foregoing  solemn  declarations  of  the 
political  power  of  the  government,  had  the  effect,  necessarily, 
to  invest  the  Indians  with  the  privilege  of  citizenship,  as  effectu- 
ally as  had  the  declaration  of  independence  of  the  United  States 
of  1776,  to  invest  all  those  persons  with  these  privileges,  residing 
in  the  country  at  the  time,  and  who  adhered  to  the  interests  of  the 
colonies.  (Inglis  v.  Sailors7  Snug  Harbor,  3 Pet.  99,  121.)  Id.  540. 
Under  the  Constitution  and  laws  of  Mexico,  as  a race,  no  distinc- 
tion was  made  between  the  Indians,  as  to  rights  of  citizenship 
and  the  privileges  belonging  to  it,  and  the  European  or  Spanish 
blood.  Id.;  Paschal’s  Annotated  Digest,  note  350.  Therefore, 
all  these  inhabitants,  without  distinction  of  race  or  color,  seem  to 
have  been  made  citizens  of  the  United  States. 

7.  All  the  inhabitants  (Mexican  citizens)  of  Arizona,  at  the  date 
of  the  Gadsden  treaty  (1854),  who  adhered  to  and  remained  in  the 
United  States.  10th  St.  1035,  Art.  V. 

8.  A few  who  have  been  naturalized  by  special  enactments,  as 
La  Fayette. 

.9.  All  the  slaves,  who,  by  the  laws  of  war,  the  proclamations  of 
the  Presidents,  the  oaths  of  amnesty  and  allegiance  required  by 
President  Johnson,  the  thirteenth  amendment  of  the  Constitution 
of  the  United  States,  and  the  various  amendments  of  the  Constitu- 
tions of  the  fifteen  slave  States,  the  treaties  with  the  Indians,  the 
Civil  Eights  Pill,  and  the  fourteenth  (?)  constitutional  amendment, 
have  become  citizens  of  the  United  States.  14  St.  358  (Treaties), 
pp.  72,  85,  102,  117  ; Paschrps  Annotated  Digest,  Art.  5382  ; note 
144,  p.  37  ; note  120,  p.  24;  note  1062,  p.  786;  note  1174,  p.  930. 

10.  All  persons  naturalized  according  to  “uniform  rule.”  2 St. 
153,  292,  811;  3 St,  53,  259  ; 4 St.  69,  310  ; 9 St.  240;  10  St.  604  ; 
13  St.  957;  Paschal’s  Annotated  Digest,  Arts.  5392-5412,  notes 
1168-1172,  pp.  919-925  ; Story’s  Const.  § 1806. 

And  “ any  woman  who  might  be  lawfully  naturalized  under  the 
existing  laws,  married,  or  who  shall  be  married,  to  a citizen  of  the 
United  States,  shall  be  deemed  and  taken  to  be  a citizen.”  10  St. 
604,  § 2 ; Paschal’s  Annotated  Digest,  Art.  5411. 

11.  All  such  Indians  as  have  ceased  their  tribal  relations,  and 
been  declared  citizens  of  the  United  States  by  treaties  or  acts  of 
Congress:  as  the  Choctaws,  who  remained  citizens  of  Missis- 
sippi and  Alabama,  under  the  treaty  of  1833;  Wilson  v.  Waul, 
U.  S.  C.,  December  7,  1867,6  Wall.  000.  The  Ottawas,  by  treaty  of 
June  24  and  July  28,  1862,  to  take  effect  five  years  from  the 
ratification  thereof,  12  St.  315;  and  24th  June,  1862.  12  St.  1237, 
Art.  1 ; the  Wyandottes,*31st  Jan.  1855,  10  St.  1159,  Art.  1 ; Ottawas 
and  Chippewas,  of  Michigan,  11  St.  621,  Art.  5;  Chippewas,  2d 
Aug.  1855,  11  St.  633,  Art.  6;  Pottawattomies,  15th  Nov.  1861,  12 


Cl.  1.] 


IMMUNITIES,  220,  221. 


225 


St.  1191,  Art.  3;  Kickapoos,  28th  June,  1862,  13  St.  623,  Art.  3;  Indians. 
Delawares,  4th  July,  1866,  14  St.  109. 

12.  Whether  a corporation  is  “ a citizen,”  within  the  meaning  of  Is  a corpora 
this  clause  does  not  seem  to  be  clearly  determined.  Bank  of  tionta  citi* 
United  States  v.  Devaux,  5 Cr.  61;  Bank  of  Augusta  v.  Earle,  13  zen205a. 
Pet.  586 ; Slocomb  v.  Bank  of  Vicksburg,  14  Pet.  60;  Louisville 
Railroad  Co.  v.  Letson,  2 How.  556;  People  v.  Islay,  20  Barb. 

68 ; Warren  Manufacturing  Co.  v.  HStna  Ins.  Co.  2 Paine,  502 ; 

Holmes  v.  Nelson,  Phila.  R.  218,  219. 

As  they  are  citizens  of  a State  who  may  sue  citizens  of  another 
State ; as  they  are  artificial  persons ; and  as  the  guaranty  secures 
the  rights,  whether  the  citizen  of  a State  ever  goes  into  another 
State  or  not,  it  is  difficult  to  see  why  the  rule  will  not  apply,  that 
the  private  corporation  shall  have  all  the  privileges  and  immuni- 
ties which  like  corporations  have  in  the  State  where  the  right  is 
asserted,  not  where  the  artificial  person  is  created.  See  Mills  v. 

The  State,  23  Tex.  295,  302,  306 ; Paschal’s  Annotated  Digest, 
notes  202,  203,  639. 

It  will  thus  be  seen  that  all  citizens  of  the  United  States  are 
either  native  born  or  naturalized.  The  native  born,  who  owe 
allegiance  to  the  United  States  from  the  moment  of  their  birth, 
ought  to  be  citizens ; and  about  it  there  never  would  have  been 
any  dispute,  but  for  color  and  the  extreme  doctriues  of  States 
Rights,  which  maintained  that  there  was  no  national  citizenship. 

The  adopted  or  naturalized  citizens  have  been  made  so  by 
treaties,  statutes,  and  uniform  rule  of  naturalization. 

2*21.  “ Privileges  and  Immunities.” — And  the  words  rights,  Define  priv- 
privileges , and  immunities , are  abusively  used,  as  if  they  were  ?leSes 
synonymous.  The  word  “rights”  is  generic,  common,  embracing 
whatever  may  be  lawfully  claimed.  Bates  on  Citizenship,  22. 

Privileges  are  special  rights  belonging  to  the  individual  or  class, 
and  not  the  mass.  Properly  an  exemption  from  some  duty,  an 
immunity  from  some  general  burden  or  obligation ; a right 
peculiar  to  some  individual  or  body.  Ex  parte  Coupland,  26  Tex. 

420.  Immunities  are  rights  of  exemption  only — freedom  from  what 
otherwise  would  be  a duty  or  burden.  Bates  on  Citizenship,  22. 

“ In  my  opinion  the  meaning  is,  that  in  a given  State,  every 
citizen  of  every  other  State  shall  have  the  same  privileges  and  im- 
munities— that  is,  the  same  rights — which  the  citizens  of  that 
State  possess.  They  are  not  subject  to  the  disabilities  of  alienage  ; 
they  can  hold  property  by  the  same  titles  by  which  every  other 
citizen  may  hold  it,  and  no  other ; discriminating  legislation  against 
them  would  be  unlawful.”  Lemmon  v.  The  People  (Denio,  J.),  20 
N.  Y.  R.  608. 

But  the  clause  has  nothing  to  do  with  the  distinctions  founded 
on  domicile.  The  citizen  cannot  carry  the  legal  institutions  of  his 
native  State  with  him.  The  privileges  and  immunities  are  not 
limited  by  time,  but  are  permanent  and  absolute.  Any  law  which 
should  deny  ingress  or  egress  to  citizens  would  be  void.  Id. 

The  States  possess  the  power  to  forbid  the  introduction  into 
their  territory  of  paupers,  criminals,  or  fugitive  slaves.  (Moore  v. 

Illinois,  14  How.  13.)  Lemmon  v.  The  People,  20  N.  Y.  R.  610. 


226 


IMMUNITIES,  221. 


[Art.  IV.,  See.  2, 


How  far  can 
the  State 
determine 
the  status 
of  persons  ? 


What  are 
the  privi- 
leges and 
immunities 
here  guar- 
anteed ? 


<^an  a State 
"'make  a citi- 
zen of  the 
United 
States? 

Negroes? 


National 
citizenship  ? 


The  State  may  determine  the  status  of  persons  within  its  juris- 
diction, except  so  far  as  it  has  been  modified  or  restrained  by  the 
Constitution  of  the  United  States.  (Groves  v.  Slaughter,  15  Pet. 
419  ; Moore  v.  Illinois,  14  How.  13  ; City  of  New  York  v.  Miln, 
11  Pet.  131,  139.)  Lemmon  v.  The  People,  20  N.  Y.  R.  603.  See 
Articles  of  Confederation,  ante , p.  10,  Art.  IV.,  Federalist,  Nos.  42, 
80;  Story’s  Const.  § 1098,  1804-1809. 

This  is  confined  to  those  privileges  and  immunities  which  are,  in 
their  nature  fundamental ; which  belong,  of  right,  to  the  citizens  of 
all  free  governments ; and  which  have,  at  ah  times,  been  enjoyed 
by  the  citizens  of  the  several  States  which  compose  this  Union, 
from  the  time  of  their  becoming  free,  independent,  and  sovereign. 
They  may  be  all  comprehended  under  the  following  general 
heads  : — Protection  by  the  government;  the  enjoyment  of  life  and 
liberty,  with  the  right  to  acquire  and  possess  property  of  every 
kind,  and  to  pursue  and  to  obtain  happiness  and  safety, — subject, 
nevertheless,  to  such  restraints  as  the  government  may  justly  pre- 
scribe for  the  general  good  of  the  whole.  The  right  of  a citizen 
of  one  State,  to  pass  through  or  to  reside  in  any  other  State, 
for  purposes  of  trade,  agriculture,  professional  pursuits,  or  other- 
wise ; to  claim  the  benefit  of  the  writ  of  habeas  corpus ; to  insti- 
tute and  maintain  actions  of  any  kind  in  the  courts  of  the  State ; 
to  take,  hold,  and  dispose  of  property,  either  real  or  personal;  and 
an  exemption  from  higher  taxes  or  impositions  than  are  paid  by 
the  other  citizens  of  the  State,  may  be  mentioned  as  some  of  the 
particular  privileges  and  immunities  of  citizens,  which  are  clearly 
embraced  by  the  general  description  of  privileges  deemed  to  be 
fundamental ; to  which  may  be  added,  the  elective  franchise,  as 
regulated  and  established  by  the  laws  or  Constitution  of  the  State 
in  which  it  is  to  be  exercised.  Corfield  v.  Coryell,  4 Wash.  C.  C. 
380-1  ; Smith  v.  Moody,  26  Ind.  302.  And  to  this  clause  of  the 
Constitution,  it  seems,  may  be  properly  referred  the  right  which, 
it  has  been  asserted,  is  possessed  by  a citizen  of  one  State  to  pass 
freely  witli  his  slaves  through  the  territory  of  another  State,  in 
which  the  institution  of  slavery  is  not  recognized.  United  States 
v.  Williamson,  4 Am.  L.  R.  19 ; see  The  People  v.  Lemmon,  5 
Law  Rep.  486.  It  does  not  embrace  privileges  conferred  by  the 
local  laws  of  a State.  Conner  v.  Elliott,  18  How.  591.  Such  as 
the  rights  of  representation  or  election.  Murray  v.  McCarty,  2 
Munf.  393.  And  see  the  questions  fully  discussed  in  Scott  v. 
Sandford,  19  How.  399. 

Since  the  adoption  of  the  Constitution  no  State  can,  by  any  sub- 
sequent law,  make  a foreigner,  or  any  description  of  persons, 
citizens  of  the  United  States,  nor  entitle  them  to  the  rights  and 
privileges  secured  to  citizens  by  that  instrument.  Scott  v.  Sand- 
ford,  1 9 How.  393.  Negroes  are  not  citizens  ” intended  to  be 
included  in  the  Constitution,  and  can,  therefore  claim  none  of  the 
rights  and  privileges  which  that  instrument  provides  for  and 
secures  to  citizens  of  the  United  States.  Id.  404.  We  must  not 
confound  the  rights  of  citizenship  which  a State  may  confer  within 
its  own  limits,  and  the  rights  of  citizenship  as  a member  of  the 
Union.  Id.  405.  He  may  have  all  the  rights  and  privileges  of 
the  citizen  of  a State,  and  yet  not  be  entitled  to  the  rights  and 


CL  1.] 


IMMUNITIES,  221. 


227 


privileges  of  a citizen  in  any  other  State.  Id.  1ST  or  have  the  6. 
States  surrendered  the  power  and  privilege  of  conferring  the  rights 
and  privileges  of  citizens,  by  adopting  the  Constitution  of  the 
United  States.  Each  State  may  still  confer  them  upon  an  alien,  or  Can  a State 
any  one  it  thinks  proper,  or  upon  any  class  or  description  of  make  citi- 
persons  ; yet  he  would  not  be  a citizen  in  the  sense  in  which  the  united  t 6 
word  is  used  in  the  Constitution  of  the  United  States,  nor  entitled  states  ? 
to  sue  as  such  in  one  of  its  courts,  nor  to  the  privileges  and  im- 
munities of  a citizen  in  the  other  States.  Id.  The  State  cannot 
make  a man  a member  of  the  community  of  the  United  States  by 
making  him  a member  of  its  own.  Id.  406. 

“ I fully  concur  in  the  statement  that  the  description,  citizen  of  the  19,  30, 35,  63 
United  States , used  in  the  Constitution,  has  the  same  meaning  that  HO. 
it  has  in  the  several  acts  of  Congress  passed  under  the  authority 
of  the  Constitution.”  (William  Wirt,  Attorney-General,  1 Op.  7th 
Nov.  1821,  vol.  1,  p.  506.)  Bates  on  Citizenship,  10  Op.  383,  389. 

But  it  means  in  them  all  the  simple  expression  of  the  political 
statics  of  the  person  in  connection  with  the  nation — that  he  is  a 
member  of  the  body  politic.  Id.  18. 

It  is  said  in  the  opinion  that  “ the  allegiance  which  the  free  man  Was  a free 
of  color  owes  to  the  State  of  Virginia,  is  no  evidence  of  citizenship,  negro  a 
for  he  owes  it  not  in  consequence  of  an  oath  of  allegiance.”  (1  Op.  yir|inia? 
t>06,  Wirt.)  “This  proposition  surprises  me;  perhaps  I do  not  °93. 
understand  it.  The  oath  of  allegiance  is  not  the  cause  but  the 
consequence  of  citizenship.  Upon  the  whole  I am  of  the  opinion 
that  free  persons  of  color  in  Virginia  are  not  citizens  of  the  United 
States,  within  the  intent  and  meaning  of  the  acts  regulating  the 
coasting  and  foreign  trade.”  (1  Op.  510,  Wirt.)  Bates  on  Citizen- 
ship, 1 9.  As  an  authority  this  opinion  is  rebutted  by  the  opinion 
of  Attorney-General  Legare,  of  15th  March,  1843.  (4  Op.  147.) 

Bates,  Id.  He  held  that  a colored  man  was  a citizen  of  the 
United  States,  entitled  to  a pre-emption.  Id. 

“ If  this  be  so  (that  is,  if  they  be  negroes),  they  are  not  citizens  Were  free 
of  the  United  States,”  entitled  to  passports  under  the  act  of  18th  negroes  in 
August,  1856,  which  restricts  the  right  to  citizens.  (William  L.  entitled^ 
Marcy,  Sec’y  of  State,  4th  Nov.  1856.)  Bates  on  Citizenship,  20.  to  all  the 
But  see  the  certificate  offered,  which  is  equivalent  to  a passport,  privileges? 
Id.  The  citizens  here  spoken  of  are  those  who  are  entitled  to  “ all 
the  privileges  and  immunities  of  citizens.”  But  free  negroes,  by 
whatever  appellation  we  call  them,  were  never  in  any  of  the  States 
entitled  to  all  the  privileges  and  immunities  of  citizens,  and  conse- 
quently were  not  intended  to  be  included  when  this  word  was 
used  in  the  Constitution.  (The  State  of  Tennessee  v.  Ambrose,  1 
Meigs,  331.)  Bates  on  Citizenship,  21. 

The  meaning  of  the  language  is  that  no  privilege  by,  or  immunity  Construe  th» 
allowed  to  the  most  favored  class  of  citizens  in  said  State  shall  be  language  ? 
withheld  from  a citizen  of  any  other  State.  (Tennessee  v. 

Ambrose,  1 Meigs,  331.)  Bates  on  Citizenship.  Either  a free 
negro  is  not  a citizen  in  the  sense  of  the  Constitution,  or,  if  a 
citizen,  he  is  entitled  to  all  the  privileges  and  immunities  of  the 
most  favored  class  of  citizens.  But  this  latter  consequence  will  be 
contended  for  by  no  one.  It  must  then  follow  that  they  are  not 


228 


CITIZENS  OF  STATES,  221,  222.  [Art.  IV.,  See.  2, 


How  does 
the  Consti- 
tution speak 
of  citizens  ? 

221. 


274. 


What  was 
the  intention 
of  the 
guaranty  ? 


Is  Scott  v. 

Sandford 

law? 

6. 

274. 


18. 


Who  were 
meant  by 
citizens  of 
the  several 
States  ? 

144,  221,  206. 

221. 


citizens.  (Tennessee  v.  Ambrose.  1 Meigs,  331.)  Bates  on  Citi- 
zenship. But  the  Constitution  speaks  of  citizens  only,  without  any 
reference  to  their  rank,  grade,  or  class,  or'  to  the  number  or 
magnitude  of  their  rights  and  immunities — citizens  simply,  with- 
out an  adjective  to  qualify  their  rights.  Id. 

Scott  v.  Sandford,  19  How.  393,  reviewed.  Id.  24.  It  is  shown 
that  it  only  determines  that  persons  of  African  descent,  whose 
ancestors  were  of  pure  African  blood,  who  have  been  brought  to  this 
country  and  sold,  are  not  citizens  of  Missouri  in  the  sense  in  which 
that  word  is  used  in  the  Constitution.  Bates  on  Citizenship. 

Indeed  the  exclusive  right  of  the  State  of  Missouri  to  determine 
and  regulate  the  status  of  persons  within  her  territory  was  the  only 
point  in  judgment  in  the  Dred  Scott  case,  and  all  beyond  this  was 
obiter.  (Ex  parte  Simmons,  4 Wash.  C.  C.  It.  396;  Groves  v. 
Slaughter,  15  Pet.  508;  Strader  v.  Graham,  10  How.  92.)  Lemmon 
v.  The  People,  20  IST.  Y.  (6  Smith),  624. 

The  intention  of  this  clause  was  to  confer  on  the  citizens  of  each 
State  all  the  privileges  and  immunities  which  the  citizens  of  the 
same  would  be  entitled  to  under  the  like  circumstances.  (Story’s 
Const.  § 1806.)  Smith  v.  Moody,  26  Ind.  301.  Among  which 
privileges  and  immunities  is  the  right  to  become  a citizen  of 
any  one  of  the  several  States,  by  becoming  a resident  thereof. 
Id. 

A citizen  of  the  United  States  residing  in  any  State  of  the  Union, 
is  a citizen  of  that  State.  (Gassies  v.  Ballou,  6 Peters,  761.)  Smith 
v.  Moody,  26  Ind.  301. 

The  thirteenth  article  of  the  Constitution  of  Indiana  denies  these  . 
rights  to  all  persons  of  African  descent.  Id. 

The  case  of  Scott  v.  Sandford,  19  How.  417,  422,  423,  quoted.  Id. 

The  opinions  of  Attorneys- General  Bates  and  Legare,  ante , 
quoted.  Id.  303. 

The  opinion  in  Scott  v.  Sandford,  though  never  formally  over- 
ruled, is  now  disregarded  by  every  department  of  the  government. 
Id.  304.  Passports  are  granted  to  free  men  of  color;  Congress  de- 
clares them  to  be  citizens ; the  Supreme  Court  of  the  United  States 
admits  them  to  its  bar.  Id. 

At  the  time  of  the  adoption  of  the  Constitution,  all  free  native- 
born  inhabitants  of  the  States  of  New  Hampshire,  Massachusetts, 
New  York,  New  Jersey,  and  North  Carolina,  though  descended 
from  African  slaves,  were  not  only  citizens  of  those  States,  but 
such  of  them  as  had  the  other  necessary  qualifications  possessed 
the  franchise  of  electors  on  equal  terras  with  other  citizens.  (The 
State  v.  Manuel,  4 Dev.  Bat.  20.)  Smith  v.  Moody,  26  Indiana, 
304. 

22*2.  “Of  Citizens  in  the  Several  States.” — This  was  in- 
tended to  secure  to  the  citizens  of  every  State,  within  every  other, 
the  privileges  and  immunities  (whatever  they  might  be)  accorded  in 
each  to  its  own  citizens,  and  no  others.  Lemmon  v.  The  People, 
20  N.  Y.  (6  Smith),  627.  See  Confederation,  Art.  IY.  ante . p.  10. 

It  did  not  mean  that  the  citizens  of  Virginia,  who  were  entitled 
to  hold  slaves  there,  could  bring  those  slaves  into  New  York  and 
hold  them  as  such,  in  accordance  with  the  laws  of  Virginia.  Lem- 


Cl.  1,  2.] 


CITIZENS  OF  STATES,  222. 


229 


mon  y.  People,  20  1ST.  T.  (6  Smith),  627.  Jackson  v.  Bulloch,  12 
Conn.  38. 

As  a general  principle,  the  slaves  who  were  carried  from  slave  to 
free  States,  with  the  permission  of  their  masters,  and  permitted  to 
reside  there,  obtained  their  freedom ; and  the  owners  could  not 
resume  their  control  over  them  as  slaves  upon  the  return  of  such 
slaves  to  such  slave  States.  Harry  v.  Lyles,  4 H.  & McHen.  215  ; 
Baptiste  v.  Yolundrum,  5 H.  & Johns.  86;  Davis  v.  Jaquin,  Id.  100, 
107;  Bcspublica  v.  Blackmore,  2 Yates,  234;  C.  S.,  Addis.  284; 
David  v.  Porter,  4 H.  & McHen.  418;  G-ilmer  v.  Fanny  Gilmer, 
Id.  143  ; Lewis  v.  Fullerton,  1 Band.  15  ; Butler  v.  Hopper,  1 Wash. 
C.  C.  499;  Yincent  v.  Duncan,  2 Missouri,  214;  Milly  v.  Smith,  Id. 
36;  Winney  v.  Whitesides,  1 Id.  472;  Julia  v.  McKinney,  3 Id. 
270;  Nat.  v.  Buddie,  Id.  400;  Yincent  v.  Duncan,  2 Id.  214; 
Bankin  v.  Lydia,  2 A.  K.  Marshall,  467.  See  the  cases  fully  col- 
lected in  Wheeler’s  Law  of  Slavery,  335-388  ; Cobb  on  Slavery. 

The  result  of  the  cases  seems  to  be  that  the  citizen  of  one  State 
does  not  carry  the  local  laws  of  his  State,  which  are  repugnant  to 
the  laws  of  his  new  domicile  into  that  State.  But  when  he  goes 
into  a State,  he  is  entitled  to  all  the  rights  and  privileges  of  the 
citizens  of  that  State,  no  more,  no  less.  He  is  not  entitled  to 
vote,  as  one  of  his  privileges,  until  the  Constitution  or  laws  of  that 
State  give  him  th q power.  See  Story’s  Confi.  Laws,  § 321-327. 

It  is  fresh  in  the  memory  of  all  that  the  Southern  school  occu- 
pied the  ground  that  this  was  not  the  law  as  to  the  Territories,  but 
that  the  citizen  might  carry  his  slave  there,  and  hold  him  as  a 
slave,  despite  any  law  of  Congress  or  the  Territories,  until  a State 
‘ Constitution  was  formed  for  admission  into  the  Union. 

The  opposite  extreme  held,  that  neither  Congress  nor  the  Terri- 
torial legislature,  nor  both  combined,  could  legalize  slavery  in  the 
“ common  territory ;”  but  that  it  could  only  be  legalized  by  a State 
Constitution,  when  the  people  were  about  to  apply  for  admission 
into  the  Union.  A subject  which  led  to  such  opposite  absurdi- 
ties, might  well  be  called  a very  obscuring  one.  See  Cobb  on 
Slavery  ; passim , Douglas’s  Speeches  for  ten  years ; the  Debates 
in  Congress  from  1848  to  1860  ; Benton’s  Thirty  Years,  and  the 
political  platforms  everywhere.  Scott  v.  Sandford,  19  How.  393. 

This  “ guaranty  ” applies  to  the  people  of  the  United  States, 
whether  existing  in  States  complete,  or  in  inchoate  States  called 
Territories.  6 Op.  304. 

The  fourth  article  of  the  Confederation  quoted  (ante,  p.  10).  Con- 
gress refused  to  insert  the  word  ,s  white.”  Id.  It  is  clear  that 
under  the  Confederation,  and  at  the  time  of  the  adoption  of  the 
Constitution,  free  colored  persons  of  African  descent  might  be,  and 
by  reason  of  their  citizenship  in  certain  States  were,  citizens  of 
the  United  States.  Smith  v.  Moody,  26  Ind.  305  ; Bates  on  Citi- 
zenship. 

[2.]  A person  charged  in  any  State  with  treason, 
felony,  or  other  crime,  who  shall  flee  from  justice,  and 
be  found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled, 


What  was 
the  effect  of 
carrying 
slaves  from 
a slave  to  a 
free  State? 


221. 

18,  226-228. 


226-223. 


226. 


p.  9. 


What  are 
the  obliga- 
tions as  to 
fugitives 
from 
Justice  ? 


230 


FUGITIVES,  223,  224.  [Art.  IV.,  Sec.  2, 


Fogitives.  be  delivered  up,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

What  does  223.  “A  person,”  in  practice,  has  been  held  to  extend  to  free 
“ person  ” and  slave ; naturalized  and  not  naturalized ; white,  Indian,  and 
^20  21  22  c°l°re(i  5 male  and  female;  in  fact,  not  only  to  the  “people,” 
24’ 35,  46,  ’the  “numbers,”  or  “ inhabitants  ;”  the  “citizens,”  “aliens,”  and 
144, 169,  220,  “ all  others;”  but  to  every  manner  of  “person,”  whether  resident, 
2?5’  192’  194  0I*  n0t’  is  “ CHARGED  IN  ANY  STATE  WITH  TREASON,  FELONY,  OR 

110-116.’  ’ OTHER  CRIME.” 

For  what  It  is  not  necessary  that  the  crime  charged  should  constitute  an 
crimes  ? offense  at  the  common  law.  In  the  matter  of  William  Fetter,  3 
Zabr.  311.  It  is  enough  that  it  is  a crime  against  the  laws  of  the 
State  from  which  he  fled.  Johnson  v.  Riley,  13  G-a.  97  ; In  the 
213, 193, 194.  matter  of  Clark,  9 Wend.  221 ; Commonwealth  v.  Daniels,  6 Penn. 

L.  J.  428  ; Hayward’s  Case,  1 Am.  L.  J.  231.  The  words  embrace 
every  act  made  punishable  by  the  laws  of  the  State.  Kentucky  v. 
Ohio,  24  How.  99.  Misdemeanors  as  well  as  treason.  Id.  100, 
102.  By  the  act  of  12th  Feb.  1793,  1 St.  302,  provision  is  made  to 
carry  into  practical  effect  this  provision  of  the  Constitution.  John- 
son v.  Riley,  13  Ga,  133.  All  that  is  required  is  to  produce  the 
copy  of  an  indictment  found,  or  an  affidavit  made,  before  a magis- 
trate of  such  State,  charging  the  person  so  demanded  with  having 
committed  a crime  against  the  governor.  Id. 


8. 

What  is  “to 
flee  ” ? 


Upon  what 
may  the 
fugitive  be 
arrested  ? 


Is  the  in- 
dictment 
conclusive  ? 


224.  “Who  shall  Flee  from  Justice  and  be  Found  in  an- 
other State.” — To  flee  is  to  run  away,  as  from  danger  or  evil ; as 
“ the  wicked  flee  when  no  man  pursueth.”  Webster’s  Die.,  Flee. 
Here,  to  be  “found  in  another  State”  is  sufficient  without  any 
actual  flight. 

A fugitive  from  justice  may  be  arrested  and  detained  until  a 
formal  requisition  can  be  made  by  the  proper  authority.  Common- 
wealth v.  Deacon,  10  S.  & R.  135;  Dow’s  Case,  6 Harr.  39;  In  the 
matter  of  William  Fetter,  3 Zabr.  311 ; The  State  v.  Buzine,  4 Har- 
ring,  572;  In  the  matter  of  Clark,  9 Wend.  221;  Goodhue’s  Case, 
1 City  Hall  Recorder,  153;  Gardner’s  Case,  2 Johns.  477;  Com- 
monwealth v.  Wilson,  Phila.  R.  80.  The  executive  upon  whom  the 
demand  is  made,  cannot  go  behind  the  demand  and  accompanying 
charge  of  the  governor  demanding,  to  determine  whether,  by  the 
laws  of  his  own  State,  the  offense  charged  is  a crime.  Each  State, 
as  a sovereign,  must  determine  for  itself,  what  is  a crime.  Johnson 
v.  Riley,  13  Ga.  133-4.  And  see  the  case  of  McGoffin,  Governor 
of  Kentucky  v.  Dennison,  Governor  of  Ohio,  24  How.  99,  100,  106. 
The  duty  of  the  executive  on  whom  the  demand  is  made,  is 
merely  ministerial.  Id.  This  article  was  substantially  copied  from 
an  article  of  the  Confederation;  which  required  the  demand  to  be 
made  upon  the  executive.  The  same  rule  was  intended.  Id. 
102-3;  ante , Art  III.  p.  10.  The  right  to  demand  is  absolute; 
and  the  duty  to  deliver,  correlative.  Id.  103.  The  proceedings 
should  correspond  to  the  act  of  12th  February,  1793.  Id.  The 
governor  on  whom  the  demand  is  made,  cannot  look  to  the  suffi- 
ciency of  the  indictment.  Id  106-7.  While  the  act  of  Congress 
declares  that  it  is  the  “duty”  of  the  governor  to  comply  with  the 


01.  2.] 


fugitives,  224,  225. 


231 


demand,  there  is  no  power  in  the  Supreme  Court  of  the  United  Moral  duty. 
States  to  enforce  the  performance  of  this  moral  duty.  Kentucky  v. 

Ohio,  24  How.  107-8. 

The  relator  insists  on  his  discharge,  on  the  ground  of  insufficiency  What  are 
and  illegality  of  the  warrant ; in  this,  that  it  do^s  not  show  by  recital,  the  requi- 
that  the  representation  and  demand  of  the  governor  of  the  State  of  sites  ot? 
Arkansas,  was  accompanied  with  a copy  of  an  indictment  found,  or 
an  affidavit  made,  before  some  magistrate  of  the  State  of  Arkansas, 
certified  to  by  said  executive  as  being  duly  authenticated,  and 
charging  the  relator  with  having  committed  the  crime  of  forgery 
within  the  said  State ; and  we  are  of  opinion,  that,  on  the  ground 
set  forth,  he  is  entitled  to  his  discharge.  Ex  parte  Thornton,  9 
Tex.  644-5.  The  chief-justice  quoted  the  foregoing  clause  of  the  ^ 

Constitution  and  the  act  of  1793,  and  concluded  the  things  neces- 
sary are: — 1.  A copy  of  the  indictment  found,  or  affidavit  made, 
charging  the  alleged  fugitive  with  having  committed  the  crime.  2, 

The  certificate  of  the  executive  of  Arkansas,  that  such  copy  was 
authentic.  (Ex  parte  Clark,  9 Wend.  222,  cited.)  The  counsel  for 
Thornton  had  relied  upon  this  case,  and  Buckner  v.  Finley,  2 Pet. 

586;  Ex  parte  Holmes,  12  Yt.  631 ; Case  of  Jose  Ferriara  de  los 
Santos,  2 Brock.  493  ; The  matter  of  Short,  10  S.  & R.  125 ; Holmes  v. 

Jennison,  1 4 Pet.  540  ; Warden  v.  Abell,  2 Wash.  Ya.  359,  380.  The 
alleged  crime  must  have  been  committed  in  the  State  from  which  the 
party  is  claimed  to  be  a fugitive ; and  he  must  be  actually  a fugitive 
from  that  State.  Ex  parte  Joseph  Smith,  3 McLean,  133;  Hayward’s 
Case,  1 Am.  L.  J.  231  ; In  the  matter  of  William  Fetter,  3 Zabr.  311. 

The  affidavit,  when  that  form  of  evidence  is  adopted,  must  be  at  what  must 
least  so  explicit  and  certain  that,  if  it  were  laid  before  a magistrate,  ttie  affidavit 
it  would  justify  him  in  committing  the  accused  to  answer  the  charge.  contain 
6 Penn.  L.  J.  414,  418.  It  must  state  positively  that  the  alleged 
crime  was  committed  in  the  State  from  which  the  party  is  alleged 
to  be  a fugitive,  and  that  the  party  is  actually  a fugitive  from  the 
State.  Ex  parte  Smith,  3 McLean,  121,  132;  Fetter’s  Case,  3 Zabr. 

311;  In  the  matter  of  Hayward,  1 Sandf.  S.  C.  701;  Degant  v. 

Michael,  3 Cart.  396. 

For  the  general  principles,  as  an  international  question,  see  1 
Kent’s  Com.  Lect.  2,  p.  36;  Matter  of  Washburn,  4 John.  Ch. 

R.  106;  Rex  v.  Bull,  1 Am.  Jurist,  297;  Yattel,  B.  2,  § 76,  77; 
Rutherforth  Inst.  B.  2,  ch.  9,  § 12;  Commonwealth  v.  Deacon,  10 
Serg.  & R.  125;  1 Am.  Jur.  297;  Commonwealth  v.  Green,  17 
Mass.  515,  546-548;  In  re  Fetter,  3 Zabr.  311;  Executive  Docu- 
ment of  1840,  1 Sess.  26  Cong.  No.  99. 

225*  “Shall  oh  Demand,  etc.,  be  Delivered  up.” — A pre- 
cept by  the  governor  of  a State,  appointing  an  agent  to  receive  a 
fugitive  from  justice,  reciting  that  he  had  made  a requisition, 
agreeably  to  the  Constitution  and  laws  of  the  United  States,  upon 
the  governor  of  the  State  into  which  the  fugitive  was  alleged  to 
have  escaped,  is  prima  facie  evidence,  for  the  protection  of  the 
agent,  of  the  truth  of  the  recitals.  Commonwealth  v.  Hall,  9 Gray 
(Mass.),  267.  A prima  facie  case  is  all  that  is  necessary.  Somerset’s 
Case,  20  State  Trials  79-  Story’s  Const.  § 1812. 


232 


FUGITIVE  SLAVES,  226,  227.  [4rt.  IY.,  Sec.  2, 


The  warrant. 


223. 

* 


Suppose  the 
fugitive 
has  been 
convicted 
and  par- 
doned ? 


What,  are 
the  obliga- 
tions as  to 
persons 
held  to 
service  ? 


And  a warrant  issued  by  the  governor  on  whom  the  demand  is 
made,  to  “ take  and  receive  into  custody  ” a fugitive  from  justice, 
authorizes  him  to  arrest  such  fugitive ; and  is  not  repugnant  to  the 
Constitution  and  laws  of  this  State  or  of  the  United  States.  Com- 
monwealth v.  Hall,  9 Gray  (Mass.),  267.  The  foreign  extradition 
jurisdiction  is  purely  political ; and  does  not  properly  belong  to  the 
judiciary,  but  to  the  executive.  (In  re  Kaine,  14  How.  103.) 
Curtis’  Com.  § 94,  95.  And  see  Holmes  v.  Jennison,  14  Pet.  540 ; 
S.  C.,  Curtis’  Com.  § 218,  note  1.  The  governor  may  mean  the 
“executive  authority  of  a State,”  under  the  U.  S.  statute  of  Feb.  12, 
1793.  (1  St.  302;  1 Brightly’s  Dig.  293.)  Commonwealth  v.  Hall, 

9 Gray  (Mass.),  262.  Where  the  warrant  is  issued,  the  courts 
cannot  go  behind  it ; the  only  question  they  can  entertain  is  as  to 
the  identity  of  the  alleged  fugitive.  Pennsylvania  v.  Daniels,  6 
Penn.  L.  J.  417,  note  ; The  State  v.  Buzine,  4 Harring.  572. 

Where  a defendant  is  brought  into  a State  as  a fugitive  from 
justice,  after  acquittal,  or  conviction  and  pardon,  he  cannot  be  sur- 
rendered to  the  authorities  of  another  State  as  a fugitive,  but  must 
be  allowed  an  opportunity  to  return  to  the  State  in  which  he  is 
domiciled.  Daniels’  Case,  cited  in  Binn’s  Justice,  267.  The 
agent  appointed  under  the  second  section  of  the  act  of  12th  Feb., 
1793  (1  Stat.  302),  is  not  liable  to  an  action  for  false  imprisonment 
by  reason  of  any  irregularity  in  the  warrant  of  arrest.  Johnston  v. 
Vanamringe,  2 Blackwood,  311. 

[3.]  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  may  be  due. 


What  is  a 226.  “ A person,”  here  is  limited,  in  practice,  to  apprentices 
person?  and  fugitive  slaves;  but  there  is  no  sound  reason  why  it  should 
not  apply  to  all  the  domestic  relations,  where  the  party  is  “held 
227,  224.  to  service  or  labor.”  See  Act  of  12th  Feb.,  1793, 1 Stat.  302;  Act 
of  18th  Sept.,  1850,  9 Stat.  462  ; 1 Brightly’s  Dig.  294,  295  ; 6 Op. 
309  ; 3 Black.  Com.  4. 

What  means  “ In  one  State.” — This  extends  to  the  Territories,  District  of 
in  a State  ? Columbia,  and  the  Indian  Territory.  See  6 Op.  302-306  ; 3 Op.  370. 

The  word  “State,”  in  both  clauses  of  this  article  is  pari  mdte- 
225,  226,  2.  rid,  and  it  possesses,  in  some  of  its  relations,  a meaning  broader 
than  its  apparent  or  usual  signification.  6 Op.  304,  which  fully 
discusses  the  whole  subject. 


What  means 
escaping  ? 
222. 


226. 


227.“  Under  the  Laws  thereof  Escaping  into  another.” — 
“ Escaping,”  here  is  not  so  comprehensive  as  “ fleeing,”  in  the  last 
clause,  since  if  the  slave  be  carried  by  his  master  into  another 
State,  and  there  left,  he  obtains  his  freedom.  See  note  222  ; Web- 
ster’s Dictionary,  Escape. 

This  includes  apprentices.  Boaler  v.  Cummins,  1 Am.  L.  R. 
654.  It  does  not  extend  to  the  case  of  a slave  voluntarily  carried 


Cl.  3.] 


FUGITIVE  SLAVES,  227. 


283 


by  his  master  into  another  State,  and  there  leaving  him,  under  the  Bid  it  apply 
protection  of  some  law  declaring  him  free.  Butler  v.  Hopper,  1 to ^slaves 
Wash.  C.  0.  499;  Yaughan  v.  Williams,  3 McLean,  530  ; Pierce’s  ^i0°wTcUo 
Case,  1 Western  Leg.  Ob.  14;  Kauffman  v.  Oliver,  10  Barr,  517  ; go  volun- 
S trader  v.  Graham,  10  How.  82  ; Miller  v.  McQuerry,  5 McLean,  tarily  ijjto ' a 
460;  In  the  matter  of  Perkins,  2 Cal.  424;  Commonwealth  v.  ee  e‘ 
Alberti,  2 Par.  505.  Slavery  is  a municipal  regulation ; is  local ; and 
cannot  exist  without  authority  of  law.  Millef  v.  McQuerry,  5 Mc- 
Lean, 469.  But  the  question,  whether  slaves  are  made  free  by 
going  into  a State  in  which  slavery  is  not  tolerated,  with  the  per- 
mission of  their  master,  is  purely  one  of  local  law,  and  to  be  deter- 
mined by  the  courts  of  the  State  in  which  they  may  be  found. 

Strader  v.  Graham,  10  How.  82  ; Scott  v.  Sandford,  19  How.  396. 

See  In  the  matter  of  Perkins,  2 Cal.  424. 

It  was  formerly  held  that  the  President  had  no  power  to  cause  As  to  slaves 
fugitive  slaves,  who  had  taken  refuge  among  the  Indian  tribes,  to  in  Indian 
be  apprehended  and  delivered  up  to  their  owners.  3 Opin.  370.  countlT  • 
But  this  has  been  since  overruled,  and  it  is  now  held  that  such 
fugitive  in  the  Indian  territory,  being  there  unlawfully,  and  as  an 
intruder,  is  subject  to  arrest  by  the  executive  authority  of  the 
United  States ; and  if  in  such  territory  there  be  no  commissioner 
of  the  United  States  to  act,  the  claimant  may  proceed  by  recapture 
without  judicial  process.  6 Opin.  302. 

The  owner  of  a slave  is  clothed  with  full  authority,  in  every  what  were 
State  of  the  Union,  to  seize  and  recapture  his  slave,  whenever  he  the  owner’s 
can  do  it  without  a breach  of  the  peace,  or  any  illegal  violence,  j^^ayJs6? 
Prigg  v.  Pennsylvania,  16  Pet.  539  ; Norris  v.  Newton,  5 McLean, 

92  ; Johnson  v.  Tompkins,  Bald.  571 ; Commonwealth  v.  Taylor,  2 
Am.  L.  J.  258  ; Yan  Metre  v.  Mitchell,  7 Penn.  L.  J.  115.  But  it  is 
under  the  Constitution  and  acts  of  Congress  only,  that  the  owner  of 
a slave  has  the  right  to  claim  him  in  a State  where  slavery  does  not 
exist.  There  is  no  principle  in  the  common  law,  in  the  law  of  nations, 
or  of  nature,  which  authorizes  such  a recapture.  Giltner  v.  Gorham, 

4 McLean,  402.  The  Constitution,  however,  recognizes  slaves  as 
property,  and  pledges  the  federal  government  to  protect  it.  Scott 
v.  Sandford,  19  How.  395.  A statute  which  punishes  the  harbor- 
ing or  secreting  a fugitive  slave,  is  not  in  conflict  with  the  Con- 
stitution or  laws  of  the  United  States.  Moore  v.  Illinois,  14  How. 

13.  Nor  does  the  Constitution  exempt  fugitive  slaves  from  the 
penal  laws  of  any  State  in  which  they  may  happen  to  be.  Com- 
monwealth v.  Holloway,  3 S.  & R.  4. 

The  Constitution  confers  on  Congress  an  exclusive  power  to  Is  the  power 
legislate  concerning  fugitive  slaves  ; and  the  act  of  1793  was  con-  of  Congress 
stitutional  and  valid.  Prigg  v.  Pennsylvania,  16  Pet.  539;  In  theexcll^e? 
matter  of  Martin,  2 Paine,  348 ; Jones  v.  Yanzandt,  2 McLean, 

612  ; In  the  matter  of  Susan,  2 Wheat.  Cr.  Cases,  594. 

The  Constitution  and  laws  do  not  confer,  but  secure,  the  right 
to  reclaim  fugitive  slaves  against  State  legislation.  Johnson  v. 

Tompkins,  Bald.  571;  Giltner  v.  Gorham,  4 McLean,  402.  The 
act  of  18th  Sept.  1850,  was  constitutional  and  valid.  Ableman  v. 

Booth,  21  How.  526;  Sims’  Case,  7 Cush.  285  ; Long’s  Case,  3 Am 
L.  J.  201;  1 Blatch.  685 ; 6 Op.  713. 

20 


234 


.FUGITIVE  SLAVES,  228.  [Art.  IV.,  Secs.  2,  3, 


Was  •t slave’ 
used  in 
the  original 
Constitu- 
tion ? 

226,  21. 


By  what 
character  of 
proceeding 
is  the 
delivery 
enforced  ? 

225. 

Through 
the  State  or 
the  Federal 
laws  ? 


What  re- 
semblance 
did  this 
clause  bear 
to  a treaty  ? 


For  what 
was  this 
clau«« 
designed  ? 


How  may 
new  States 
be  admit- 
ted ? 


The  term  “ slave  ” is  not  used  in  the  Constitution,  and  if  “ per- 
son ” means  “ slave,”  then  the  Constitution  treats  slaves  as  persons, 
and  not  as  property,  and  it  acts  upon  them  as  persons  and  not  as 
property,  though  the  latter  character  may  be  given  to  them  by  the 
laws  of  the  States  in  which  slavery  is  tolerated.  Lemmon  v.  Peo- 
ple, 20  N.  Y.  (6  Smith),  624. 

228.  “Shall  be  delivered  up.” — This  contemplates  summary 
and  informal  proceedings  (not  a suit),  and  a prima  facie  case  of 
ownership  only.  (Somerset’s  Case,  20  State  Trials,  79.)  Story’s 
Const.  § 1812;  Jack  v.  Martin,  12  Wend.  511 ; Prigg  v.  Pennsyl- 
vania, 16  Pet.  667;  Sims’  Case,  7 Cush.  731;  2 Story’s  Const.  (3d 
ed.)  pp.  622,  625  ; Wright  v.  Deacon,  5 S.  & R.  62.  The  delivery  is 
to  be  through  the  congressional  enactments  of  Congress ; and  is 
not  obligatory  upon  the  States,  through  their  executives  or  author- 
ities. Prigg  v.  Pennsylvania,  16  Pet.  608 ; affirmed  in  Jones  v. 
Yanzandt,  5 How.  225;  Moore  v.  Illinois,  14  How.  13.  The 
student,  who  may  wish  to  calmly  survey  this  irritating  subject, 
which  served  chiefly  to  prepare  the  public  mind  for  the  effort  to 
destroy  the  Union,  but  which  has  ceased  to  be  a matter  of  agita- 
tion since  the  destruction  of  slavery,  is  recommended  to  read 
attentively  the  last-named  cases  (which  are  also  carefully  reported 
in  Story’s  Const.  § 1812a,  18125),  and  Glen  v.  Hodges,  9 Johns. 
62;  Wright  v.  Deacon,  5 Serg.  & R.  62  ; Commonwealth  v.  Griffith, 
2 Pick.  211;  Jack  v.  Martin,  12  Wend.  311;  S.  C.  12  Wend.  507  ; 
Wheeler’s  Law  of  Slavery ; Cobb  on  Slavery ; The  Debates  of 
1850,  1860,  and  1861;  The  Report  of  the  Committee  of  Thirty-one 
in  1861,  and  the  authorities  cited  in  these  notes. 

This  clause  of  the  Constitution  was,  in  character,  precisely  a 
treaty.  It  was  a solemn  compact,  entered  into  by  the  delegates 
of  States  then  sovereign  and  independent,  and  free  to  remain  so,  on 
great  deliberation,  and  on  the  highest  considerations  of  justice  and 
policy,  and  reciprocal  benefit,  and  in  order  to  secure  the  peace  and 
prosperity  of  all  the  States.  (Sims’  Case,  7 Cushing  (Mass.)  285.) 
Story’s  Const.  (3d  ed.)  § 18125,  note  1,  pp.  615,  616.  And  see 
Miller  v.  McQuerry,  5 McLean,  469  ; Henry  v.  Lowell,  16  Barbour ; 
Commonwealth  v.  Griffith.  2 Pick.  11  ; Wright  v.  Deacon,  5 Sergt. 
& Rawle,  62. 

This  clause  was  designed  to  provide  a practicable  and  peaceable 
mode,  by  which  such  fugitive,  upon  the  claim  of  the  person  to 
whom  such  labor  or  service  should  be  due,  might  be  delivered  up. 
Sims’  Case,  7 Cush.  288.  The  law  of  1793  (7  St.  302),  for  deliver- 
ing up  without  trial,  was  constitutional.  Commonwealth  v.  Grif- 
fith, 2 Pick.  11  ; Wright  v.  Deacon,  5 S.  & R.  62  ; Jack  v.  Martin, 
12  Wend.  311 ; Hill  v.  Low,  4 Wash.  C.  C.  327 ; Prigg  v.  Pennsyl- 
vania, 16  Pet.  539;  Johnson  v.  Tompkins,  Baldwin,  371;  Jones 
v.  Yanzandt,  5 How.  215,  229.  The  fugitive  must  not  only  have 
owed  service  or  labor  in  another  State,  but  he  must  have  escaped 
from  it.  (Commonwealth  v.  Fitzgerald,  7 Law  Reports,  379;  Com- 
monwealth v.  Avis,  18  Pick.  193.)  Sims’  Case,  7 Cush.  728. 

Sec.  III. — [1.]  New  States  may  be  admitted  by  the 
Congress  into  this  Union,  but  no  new  State  shall  be 


01. 1.] 


NEW  STATES,  229. 


235 


formed  or  erected  within  the  jurisdiction  of  any  other  with  «hat 

™ ..  n t i i • • restriction®? 

State  ; nor  any  State  be  formed  by  the  junction  of  two 
or  more  States,  or  parts  of  States,  without  the  consent  229. 
of  the  legislatures  of  the  States  concerned,  as  well  as  470. 
of  the  Congress. 

229.  “ New  States  ” are  others  than  those  which  formed  the  What  is  a 
Constitution.  “States”  is  here  used  in  a broader  sense  than  in  8tate  • 
the  second  and  third  sections  of  this  article.  Out  of  whatever  ter-  226, 28. 
ritory  such  States  may  be  created,  it  seems  to  be  settled  that  it 
belongs  to  Congress  to  determine  when  a State  shall  be  added  to 
the  Union ; and  when  admitted,  the  State  becomes  an  equal  in  the 
Union. 

For  a history  of  the  subject,  see  Confederation,  ante , Art.  XI., 
p.  19;  Scott  v.  Sandford,  19  How.  395;  Journals  of  Convention, 
p.  222,  305-311;  2 Pitk.  Hist.  ch.  11,  pp.  19,  36;  1 Kent’s  Com. 

Lect.  10,  pp.  197,  198;  1 Secret  Journals  of  Congress  in  1775,  368- 
386,  433-446;  1 Tuck.  Black.  Com.  App.  383,  386;  6 Journal  of 
Congress,  10th  Oct.,  1780,  p.  213;  7 Id.  1st  March,  1781,  pp.  43- 
48  ; Land  Laws  U.  S.  Int.  chap.';  Story’s  Const.  § 1316.  These  give 
the  history  and  the  early  legislation  in  regard  to  the  crown  lands. 

And  see  Federalist,  Nos.  38,  42,  43;  Am.  Ins.  Company  v.  Canter, 

1 Pet.  511,  542;  The  Ordinance  of  the  13th  July,  1787 ; 3 Story’s 
Laws,  App.  2073;  1 Tuck.  Black.  Com.  App.  278,  282;  1 St. 

And  for  a very  full  discussion,  see  Scott  v.  Sandford,  19  How.  395. 

Much  of  this  “Dred  Scott”  opinion  is  also  given  in  Story’s  Const. 

§ 1318,  note  1,  pp.  193-226.  As  an  historical  review,  the  opinions,  and 
the  vast  range  of  discussion  which  they  called  forth,  are  valuable. 

And  see  Webster’s  Speeches,  &c.,  360-364.  From  so  vast  a range, 
which  filled  the  whole  political  literature  of  the  country  and  formed 
the  platforms  of  political  parties,  it  would  be  useless  to  make 
citations. 

This  clause  enabled  Congress  to  admit  new  States ; it  refers  to  what  terri- 
and  includes  new  States  to  be  formed  out  of  this  territory,  expected  tory  did  the 
to  be  thereafter  ceded  by  North  Carolina  and  G-e©rgia,  as  well  as  j^hide ? 
new  States  to  be  formed  out  of  territory  northwest  of  the  Ohio, 
which  then  had  been  ceded  by  Virginia.  Scott  v.  Sandford  (Justice 
Curtis),  19  How.  611,  612  ; 2 Story’s  Const.  3 ed.  p.  212. 

The  Constitution  confers  absolutely  on  the  government  of  the  117, 118, 178. 
Union  the  powers  of  making  war  and  treaties ; consequently  the 
power  of  acquiring  territory  either  by  conquest  or  treaty.  (Amer- 
ican Insurance  Company  v.  Canter,  1 Pet.  542;  see  Cerre  v.  Portot, 

6 Cr.  336.)  Scott  v.  Sandford,  19  How.  395 ; 2 Story’s  Const.  3d 
ed.  p.  213;  Cross  v.  Harrison,  16  How.  189.  And  see  Fleming  v. 

Page,  9 How.  614. 

The  Confederate  States  Constitution  imposed  this  restriction  upon  what  re- 
the  admission  of  new  States  into  the  Confederacy:  “ Other  States  striction 

may  be  admitted  into  the  Confederacy  by  a vote  of  two-thirds  of  confederate 
the  whole  House  of  Bepresentatives,  and  two-thirds  of  the  Senate  states 
— the  Senate  voting  by  States.”  Paschal’s  Annotated  Digest,  p.  93,  impose? 

Art  IV.,  sec.  3,  cl.  1. 


t 


236 


NEW  STATES,  229,  230.  [Art.  IV.,  Sec.  3, 


What  is  the  The  territorial  legislatures  cannot,  without  permission  from 
Territorial  Congress,  Pass  ^aws  authorizing  the  formation  of  Constitutions  and 
govern-  State  governments.  All  measures  commenced  and  prosecuted 
ments  as  to  with  a design  to  subvert  the  territorial  government,  and  to  estab- 
forming  new  pgh  an(j  pUt  jn  force  [n  its  place  a new  government,  without  the 
consent  of  Congress,  are  unlawful.  But  the  people  of  any  Terri- 
tory may  peaceably  meet  together  in  primary  assemblies,  or  in 
conventions  chosen  by  such  assemblies,  for  the  purpose  of  petition- 
ing Congress  to  abrogate  the  territorial  government,  and  to  admit 
them  into  the  Union  as  an  independent  State ; and  if  they  accom- 
pany their  petition  with  a Constitution  framed  and  agreed  on  by 
their  primary  assemblies,  or  by  a convention  of  delegates  chosen 
by  such  assemblies,  there  is  no  objection  to  their  power  to  do  so, 
nor  to  any  measures  which  may  be  taken  to  collect  the  sense  of 
the  people  in  respect  to  it : provided  such  measures  be  prosecuted 
in  a peaceable  manner,  in  subordination  to  the  existing  govern- 
ment, and  in  subserviency  to  the  power  of  Congress  to  adopt, 
reject,  or  disregard  them  at  their  pleasure.  2 Opin.  726.  And 
see  the  practice  in  the  admission  of  Maine,  Vermont,  Ten- 
nessee, Kentucky,  and  all  the  States  since,  including  West  Vir- 
ginia ; from  the  differences  in  which  it  would  appear  that  there  is 
no  uniform  rule  for  the  admission  of  new  States.  Hickey’s  Const, 
ch.  8,  p. 


What  new 
States  have 
oeen  admit- 
ted, and 
■when  ? 

Vt.  & Ky.  ? 

Tennessee  ? 

Ohio  ? 

Louisiana  ? 
Indiana  ? 

Mississippi  ? 

Illinois? 
Alabama  ? 

Maine  ? 
Missouri? 
Arkansas  ? 


230.  Under  this  section  the  following  States  have  been  ad- 
mitted : — 

Vermont,  formed  from  part  of  Hew  York,  by  act  of  Feb.  18, 
1791,  which  took  effect  March  4,  1791.  1 Stat.  191;  Brightly’s 

Dig.  894.  Kentucky,  formed  from  part  of  Virginia ; by  act  of  Feb. 
4,  1791,  which  took  effect  June  1,  1792.  1 Stat.  189;  Brightly’s 
Dig.  455.  Tennessee,  formed  from  territory  ceded  to  the  U.  S. 
by  North  Carolina,  by  act  of  June  1,  1796,  which  took  effect  from 
date.  1 Stat.  491 ; Brightly’s  Dig.  863.  Ohio,  formed  from  terri- 
tory ceded  to  the  U.  S.  by  Virginia,  by  act  of  Feb.  19,  1803, 
which  took  effect  from  date.  2 Stat.  201 ; Brightly’s  Dig.  708. 
Louisiana,  formed  from  part  of  the  territory  purchased  of  France, 
by  treaty  of  April  30,  1803;  by  act  of  April  8,  1812,  which  took 
effect  from  date.  2 Stat.  701 ; Brightly’s  Dig.  582.  Indiana, 
formed  of  part  of  territory  ceded  to  the  U.  S.  by  Virginia,  by  act 
of  Dec.  11,  1816,  which  took  effect  from  date.  3 Stat.  399  ; Bright- 
ly’s Dig.  416.  Mississippi,  formed  from  part  of  the  territory  ceded 
to  U.  S.  by  Georgia  and  South  Carolina,  by  act  of  Dec.  10,  1817, 
which  took  effect  from  date.  3 Stat.  472;  Brightly's  Dig.  640.  Il- 
linois, formed  from  part  of  the  territory  ceded  to  U.  S.  by  Virginia, 
by  act  of  Dec.  3,  1818,  which  took  effect  from  date.  3 Stat.  536; 
Brightly’s  Dig.  310.  Alabama,  formed  from  part  of  the  territory 
ceded  to  United  States  by  Georgia  and  South  Carolina,  by  act  of 
Dec.  14,  1819,  which  took  effect  from  date.  3 Stat.  608:  Brightly’s 
Dig.  29.  Maine,  formed  from  part  of  Massachusetts,  b«r  act  of 
March  3,  1820,  which  took  effect  March  15,  1820.  3 Stat.  544; 

Brightly’s  Dig.  590.  Missouri,  formed  from  part  of  the  “ Louisiana 
Purchase,”  by  act  of  March  2,  1821;  which  took  effect  Aug.  10, 
1821.  3 Stat  645;  Brightly’s  Dig.  617.  Arkansas,  formed 


Cl.  1.] 


NEW  STATES,  230. 


237 


from  part  of  the  “ Louisiana  Purchase,”  by  act  of  June  15,  1836,  Louisiana, 
which  took  effect  from  date.  5 Stat.  50 ; Brightly’s  Dig.  45. 

Michigan,  formed  from  part  of  the  territory  ceded  to  United  States  Michigan? 
by  Virginia,  by  act  of  June  15,  1836,  which  took  effect  from  date. 

5 Stat.  49;  Brightly’s  Dig.  614.  Florida,  formed  from  territory  Florida? 
purchased  from  Spain  under  treaty  of  Feb.  22,  1819,  by  act  of 
March  3,  1845,  which  took  effect  from  date.  § 1,  5 Stat.  742; 

Brightly’s  Dig.  288.  Iowa,  by  act  of  March  3,  1845,  which  took  Iowa? 
effect  from  date.  5 Stat.  742;  boundaries  readjusted,  Aug.  4, 

1846.  § 1,  9 Stat.  52.  Readmitted  Dec.  28,  1846.  9 Stat.  117,  § 1 ; 

Brightly’s  Dig.  442,  444.  Texas,  an  independent  republic,  annexed  Texas? 

Dec.  29,  1845,  by  act  of  that  date.  9 Stat.  1 ; Brightly’s  Dig.  872; 

Calkin  v.  Cocke,  14  How.  227  ; Paschal’s  Dig.  46,  note  159.  WlS-  Wisconsin? 
CONSIN,  by  act  of  May  29,  1848,  which  took  effect  from  date.  9 Stat. 

57  ; Brightly’s  Dig.  906.  • California,  formed  from  part  of  the  ter-  California? 
ritory  ceded  to  U.  S.  by  Mexico,  by  treaty  of  Hidalgo,  Feb.  3,  1848 ; 
by  act  of  Sept.  9,  1850.  9 Stat.  452  ; Brightly’s  Dig.  105.  Minnesota,  Minnesota? 
formed  from  part  of  the  “Louisiana  Purchase,”  by  act  of  May  11, 

1858,  which  took  effect  from  date.  11  Stat.  285 ; 2 Brightly’s  Dig. 

301.  Oregon,  see  Treaties  of  the  U.  S.  with  France,  of  April  30,  Oregon? 
1803,  with  Spain,  Feb.  22,  1819  ; with  Great  Britain,  June  15,  1846  ; 
admitted  by  act  of  Feb.  14,  1859.  11  Stat.  383  ; Brightly’s  Dig.  349. 

Kansas,  formed  from  part  of  the  “ Louisiana  Purchase,”  by  act  of  Kansas? 
Jan.  29,  1861,  which  took  effect  from  date.  12  Stat.  126;  Brightly’s 
Dig.  278.  West  Virginia,  formed  of  certain  counties  of  Virginia,  West  Va.? 
by  act  of  Deg.  31,  1862.  12  Stat.  633  ; admitted  by  same  act,  to 

date  from  June  20,  1863,  by  proclamation  of  the  President. 

Appendix,  12  Stat.  ii.  Nevada,  formed  from  part  of  California.  Nevada? 
by  act  of  March  21,  1864.  13  Stat.  32.  To  take  effect,  Oct.  31, 

1864,  the  date  of  proclamation  of  the  President.  Appendix,  13 
Stat.  ii.  Nebraska,  formed  from  part  of  the  “ Louisiana  Pur-  Nebraska? 
chase,”  by  act  of  Feb.  9,  1867,  which  took  effect  from  date.  14 
Stat.  391. 

For  the  enabling  acts  and  manner  of  admission,  see  Hickey’s 
Constitution,  chap.  10,  pp.  405-449.  And  see  Cross  v.  Harrison, 

16  How.  189. 

All  Congress  intended  (by  the  enabling  act  of  1811),  was  to  What  is  the 
declare  in  advance  to  the  people  of  the  territory,  the  fundamental  ^J^t of  an 
principles  which  their  Constitution  should  contain ; this  was  very  act  ? mg 
proper  under  the  circumstances  ; the  instrument  having  been  duly 
formed  and  presented,  it  was  in  the  national  legislature  to  judge 
whether  it  contained  the  proper  principles,  and  to  accept  it  if  it  did, 
or  reject  it  if  it  did  not.  Having  accepted  the  Constitution  and  ad-  What  is  the 
mitted  the  State,  “ on  an  equal  footing  with  the  original  States,”  in  effect  of  the 
all  respects  whatever  in  express  terms,  by  the  act  of  1812,  Con-  ofth^Con- 
gress  was  concluded  from  assuming  that  the  instructions  coutain-  stitution? 
ed  in  the  act  of  1811,  had  not  been  complied  with.  No  funda- 
mental ^principles  could  be  added  by  way  of  amendment,  as  this 
would  have  been  making  part  of  the  State  Constitution.  If  Congress 
could  make  it  in  part,  it  might,  in  form  of  amendment,  make  it  entire. 

Permoli  v.  First  Municipality,  1 How.  610.  But  seethe  act  of  Con- 
gress of  9th  Feb.,  1867,  requiring  the  agreement  by  the  legislature  it,  18. 


I 


238 


TERRITORIES,  231.  [Art.  IV.,  Sec.  3, 


of  Nebraska,  to  the  fundamental  principle,  that  there  should  be  no 
distinction,  as  to  the  right  of  suffrage,  on  account  of  color.  14 
St.  392,  and  Id.  App.  iv. 

what  is  the  [2.]  The  Congress  shall  have  power  to  dispose  of 

th«T territory  and  make  all  needful  rules  and  regulations  respecting 

pubUc^prop-  the  territory  or  other  property  belonging  to  the  Uni- 

Unitedthe  ted  States ; and  nothing  in  this  Constitution  shall  be 

471-473.  so  construed  as  to  prejudice  any  claims  of  the  United 

States,  or  of  any  particular  State. 

231.  “To  Dispose  op.” — In  other  words,  to  make  sale  of  the 
lands,  or  to  raise  money  from  them.  Scott  v.  Sandford,  19  How. 
615;  S.  C.  2 Story’s  Const.  3 ed.  p.  196. 

The  power  of  Congress  to  “ dispose  of”  the  public  lands,  is  not 
limited  to  making  sales;  they  may  be  leased.  United  States  v. 
Gratiot,  1 McLean,  454;  14  Pet.  526  ; 4 Opin.  487.  But  no  prop- 
erty belonging  to  the  United  States  can  be  disposed  of  except  by 
the  authority  of  an  act  of  Congress.  United  States  v.  Nicol,  1 
Paine,  646. 

“And  make  all  needful  Rules  and  Regulations.  Needful” 
here  may  well  be  compared  with  “ necessary  and  proper ,”  in  the 
18tli  clause  of  Art.  I.  Sec.  8.  And  as  Congress  can  only  authorize 
dispositions  by  legislative  enactments,  so  the  “needful  rules,”  must 
mean  the  appropriate  legislation  touching  the  subject-matter.  See 
Justice  Curtis  in  Scott  v.  Sandford,  19  How.  615  ; 2 Story’s  Const. 
3d  ed.  p.  213. 

The  words  “rules  and  regulations,”  are  usually  employed  in 
the  Constitution  in  speaking  of  some  particular  specified  power 
which  it  means  to  confer  on  the  government,  and  not,  as  we  have 
seen,  when  granting  general  powers  of  legislation.  As  to  make 
“rules”  for  the  government  and  regulation  of  the  land  and  naval 
forces;  to  “regulate  commerce “to  establish  an  uniform  rule  of 
naturalization “ to  coin  money  and  regulate  the  value  thereof.” 
In  all  these,  as  in  respect  to  the  Territories,  the  words  are  used  in 
a restrioted  sense.  (Scott  v.  Sandford,  19  How.  437.)  2 Story’s 
Const.  3d  ed.  pp.  196,  213. 

“Respecting  the  Territory.” — Territory.  [Fr.  Territoire; 
It.  and  Sp.  Territorio ; Lat.  Territorium;  from  terra , land.]  1.  The 
extent,  or  compass  of  land  within  the  bounds,  or  belonging  to  the 
jurisdiction,  of  any  State,  city,  or  other  body.  2.  A tract  of  land 
belonging  to  or  under  the  dominion  of  a prince  or  State,  at  a distance 
from  the  parent  country  or  the  seat  of  government,  &c.  Webster’s 
Die.,  Territory.  Called  by  Pomponius  in  the  Digests,  the  whole 
amount  of  the  lands  within  the  limits  of  any  State  ( universitas  agro- 
rum  intra  fines  cujusque  civitatis).  (Dig.  50,  16,  239,  8.)  Burrill’s 
Law  Die.,  Territorium;  United  States  v.  Bevans,  3 Wheat.  386; 
Justice  Curtis  in  Scott  v.  Sandford,  19  How.  615  ; 2 Story’s  Const, 
p.  211.  It  applied  only  to  the  “ property  ” which  the  States  held  in 
common  at  that  time,  and  had  no  reference  whatever  to  any  “ter- 
ritory,” or  other  property  which  the  new  sovereignty  might  after- 


What  is  “to 
dispose  of”? 


How 

limited  ? 


Define 
u needful 
rules  and 
regula- 
tions” ? 

138. 


28,  29,  129. 


85,  93,  99, 
100. 


211. 


Define 

“territory”  ? 

222-228. 


01.  2.] 


239 


TERRITORIES,  231. 

ward  itself  acquire.  Scott  v.  Sandford,  19  How.  615;  S.  C.  2 472. 

Story’s  Const.  3d  ed.  p.  196.  The  term  “ territory,”  as  here  used,  To  what  is 
is  merely  descriptive  of  one  kind  of  property,  and  is  equivalent  to  the  .word 
the  word  “lands.”  United  States  v.  Gratiot,  14  Pet.  537.  This  equiTa  en 
clause  applies  only  to  territory  within  the  chartered  limits  of  some 
one  of  the  States,  when  they  were  colonies  of  Great  Britain.  It 
does  not  apply  to  territory  acquired  by  the,present  federal  govern- 
ment, by  treaty  or  conquest,  from  a foreign  nation.  Scott  v.  Sand- 
ford,  19  How.  395;  S.  0.,  Story’s  Const.  § 1318,  3d  ed.  p.  193. 

But  see  Justice  Curtis’  Opinion,  2 Story,  3d  ed.  p.  211. 

It  does  not  speak  of  any  territory , nor  of  territories , but  uses 
•language  which,  according  to  its  legitimate  meaning,  points  to  a 
particular  thing.  The  power  is  given  in  relation  only  to  the  territory 
of  the  United  States,  that  is,  to  territory  then  in  existence,  and 
then  known  or  claimed  as  the  territory  of  the  United  States. 

Scott  v.  Sandford,  19  How.  436  ; S.  C.  2 Story’s  Const.  3d  ed.  p.  196. 

The  power  of  governing  a territory  belonging  to  the  United  Does  the 
States,  which  has  not,  by  becoming  a State,  acquired  the  means  of  Power  to 
self-government,  has  been  said  to  result  necessarily  from  the  facts  fu^Trom" 
that  it  is  not  within  the  jurisdiction  of  any  particular  State,  and  the  power  to 
is  within  the  power  and  jurisdiction  of  the  United  States.  Theac(luire? 
power  to  govern  seems  to  be  the  inevitable  consequence  of  the  233. 
right  to  acquire  territory.  American  Insurance  Co.  v.  Canter,  1 
Pet.  542-3 ; United  States  v.  Gratiot,  14  Id.  537 ; Cross  v.  Har- 
rison, 16  How.  194;  Whiting,  331.  Congress  has  the  constitu- 
tional power  to  pass  laws  punishing  Indians  (within  their  territory) 
for  crimes  and  offenses  committed  against  the  United  States.  The 
Indian  tribes  are  not  so  far  independent  nations  as  to  be  exempt 
from  this  kind  of  legislation.  United  States  v.  Cha-to-kah-na-pe- 
sha,  Hemp.  27.  The  United  States,  under  the  present  Constitution, 
cannot  acquire  territory  to  be  held  as  a colony,  to  be  governed  at 
its  will  and  pleasure.  But  it  may  acquire  territory  which,  at  the 
time,  has  not  the  population  that  fits  it  to  become  a State,  and 
may  govern  it  as  a territory  until  it  has  a population  which,  in 
the  judgment  of  Congress,  entitles  it  to  be  admitted  as  a State 
of  the  Union.  During  the  time  it  remains  a territory,  Congress  220-228. 
may  legislate  over  it  within  the  scope  of  its  constitutional  powers, 
in  relation  to  citizens  of  the  United  States,  and  may  establish  a 
territorial  government;  and  the  form  of  this  local  government 
must  be  regulated  by  the  discretion  of  Congress,  but  with  power 
not  exceeding  those  which  Congress  itself,  by  the  Constitution,  is 
authorized  to  exercise  over  citizens  of  the  United  States,  in  respect 
to  their  rights  of  person  or  rights  of  property.  The  territory  thus 
acquired,  is  acquired  by  the  people  of  the  United  States,  for  their 
common  and  equal  benefit ; and  every  citizen  has  a right  to  take 
with  him  into  the  territory  any  article  of  property,  including  his 
slaves,  which  the  Constitution  recognizes  as  property,  and  pledges 
the  federal  government  for  its  protection.  Scott  v.  Sandford,  19 
How.  395.  The  country  dedicated  to  Indian  purposes  still  re-  What  is  th» 
mains  a part  of  the  territory  of  the  United  States,  subject  to  its  power  ovei 
laws.  The  United  States  v.  Rogers,  4 How.  567.  Aud  the  power  territory  ’ 
exists  to  punish  crimes  committed  in  that  country,  whether  perpe- 
trated by  Indians  or  whites.  Id.  And  see  6 Op. 


240 


TERRITORIES,  231.  [Art.  IV.,  Sec.  3, 

What  is  the  It  will  be  seen  that  the  principle  stated  by  Chief-Justice  Taney, 
in  United  States  v.  Rogers,  4 How.  567,  recognizes  the  plenary 
power  of  Congress  to  legislate  for  the  Territories — that  is,  as 
stated  in  the  American  Insurance  Co.  v.  Canter,  1 Pet.  542,  all  the 
powers  which  both  Congress  and  the  State  legislatures  combined, 
possess  in  the  States.  But  in  the  Dred  Scott  Case  he  limits  the 
power,  and  confines  its  exercise  to  the  country  ceded  before  the 
adoption  of  the  Constitution.  But  in  the  case  of  the  United 
States  v.  Rogers,  4 How.  567,  the  territory  under  discussion  was 
part  of  that  acquired  from  Louisiana.  In  reference  to  this  territory, 
as  well  as  that  acquired  from  Georgia,  Spain,  Mexico,  and  Rus- 
sia, there  has  been  no  distinction  in  regard  to  the  character  of 
legislation.  Congress  has  exercised  power  both  as  to  crimes  and 
civil  and  political  rights.  The  organized  territorial  governments 
have  been  treated  as  inchoate  States  for  some  purposes.  Slavery 
has  been  tolerated  or  prohibited,  according  to  circumstances.  And 
now  that  the  agitating  question  of  slavery  is  out  of  the  way, 
the  author  would  venture  to  suggest  that  the  country  will 
settle  down  upon  the  principle  that  organized  44  Territory  ” 
carries  along  the  idea  of  power  and  jurisdiction ; and  that 
Congress  has  the  right  to  organize  governments  there,  44  mak- 
ing rules  ” which  shall  not  be  inconsistent  with  the  Consti- 
tution of  the  United  States ; and  exercising  all  the  power  over  the 
inhabitants,  no  more,  no  less,  which  may  be  exercised  over 
the  States ; not  exclusive  legislation  as  in  the  District,  and  forts, 
and  arsenals ; but  all  the  legislation  which  may  be  necessary 

188,  221,222.  and  proper  to  guarantee  the  principles  of  republican  government; 

and  to  insure  the  erection  and  admission  of  new  States,  with 
those  principles.  The  failure  has  been  in  observing,  that  an 
organized  territorial  government  is  for  all  purposes  of  municipal 
legislation,  a State,  and  has  been  so  recognized  in  many  ways. 
And  the  supervision  of  Congress  over  such  legislation  is  no 
greater  than  the  national  supervision  over  unconstitutional  legis- 
lation by  the  States.  The  only  difference  is  in  the  mode  of 
revision  and  redress.  See  Scott  v.  Sandford,  19  How.  395-633 ; 
2 Story’s  Const,  pp.  205,  214-218. 

Define  “all”  In  Scott  v.  Sandford,  Mr.  Justice  Curtis  insisted  that  “all” 

inpi«necd"  meant  all;  that  Congress  alone  could  judge  of  what  was  ‘‘need- 
ful.” But  the  majority  denied  that  44  all  ” included  the  right  to 
make  a rule  excluding  slavery ; or  rather,  it  was  denied  that  a 
cession  of  territory  cedes  the  legislative  jurisdiction  for  any  other 
purpose  than  to  dispose  of  the  property  in  the  land.  See  19  How. 
pp.  615,  616;  Story’s  Const.  3d  ed.  p.  214.  The  difference  of 
opinion  cannot  be  more  stroDgly  stated  than  in  these  words  : — 
44 1 construe  this  clause,  as  if  it  read  : Congress  shall  have  power 
to  make  all  needful  rules  and  regulations  respecting  those  tracts 
of  country  out  of  the  limits  of  the  several  States,  which  the 
United  States  have  acquired,  or  may  hereafter  acquire,  by  cessions, 
as  well  of  the  jurisdiction  as  of  the  soil,  so  far  as  the  soil  may  be 
the  property  of  the  party  making  the  cession,  at  the  time  of 
making  it.”  Justice  Curtis,  2 Story’s  Const.  3d  ed.  p.  213.  The 
opposite  view  was  expressed  in  these  words : — 

“ 2.  The  Congress  shall  have  power  to  dispose  of  and  make  all 


CL  2.] 


PROPERTY  OF  UNITED  STATES,  232. 


241 


needful  rules  and  regulations  concerning  the  property  of  the  Con-  Confederate 
federate  States,  including  the  lands  thereof.  States. 

3.  The  Confederate  States  may  acquire  new  territory,  and  Con-  How  did  the 
gress  shall  have  power  to  legislate  and  provide  governments  for  ^nf^er^te 
the  inhabitants  of  all  territory  belonging  to  the  Confederate  States,  differ  from11 
lying  without  the  limits  of  the  several  States,  and  may  permit  this  ? 
them,  at  such  times  and  in  such  manner  as  it  may  by  law  provide, 
to  form  States  to  be  admitted  into  the  Confederacy.  In  all  such 
territory  the  institution  of  negro  slavery,  as  it  now  exists  in  the 
Confederate  States,  shall  be  recognized  and  protected  by  Congress, 
and  by  the  territorial  government ; and  the  inhabitants  of  the 
several  Confederate  States  and  Territories  shall  have  the  right  to 
take  to  such  Territory  any  slaves  lawfully  held  by  them,  in  any  of 
the  States  or  Territories  of  the  Confederate  States.”  Paschal’s 
Annotated  Digest,  p.  93,  Art.  IV.,  Sec.  III.,  Cl.  2,  3. 

This  was  making  the  Constitution  precisely  what  this  school  con- 
tended the  Dred  Scott  decision  had  settled  that  it  was.  The 
power  to  acquire  and  govern  territory  seems  to  grow  out  of  the 
war  power  and  to  rest  upon  constitutional  principles.  Fieming  v. 

Page,  9 How.  614;  Cross  v.  Harrison,  16  How.  189. 

232.  “ Or  other  Property  belonging  to  the  United  States.”  What  is 
— “Property”  (Proprietas,  proprius)  is  the  most  comprehensive  property ? 
word  of  dominion  or  ownership.  See  Webster’s  Die.,  Property. 

It  is  the  right  to  dispose  of  the  substance  of  a thing  in  every 
legal  way,  to  possess  it,  to  use  it,  and  to  exclude  every  one  else 
from  interfering  with  it.  (Mackeld  Civil  Law,  269,  § 259 ; Bell’s 
Diet. ; Taylor’s  Civil  Law,  476;  2 Bl.  Com.  15.)  Burrill’s  Law  Die., 

Property. 

And  the  same  power  of  making  needful  rules  respecting  the  473. 
territory  is,  in  precisely  the  same  language,  applied  to  the  other 
property  belonging  to  the  United  States — associating  the  power 
over  the  territory  in  this  respect  with  the  power  over  movable  or 
personal  property — that  is,  the  ships,  arms,  and  munitions  of  war, 
which  then  belonged  in  common  to  the  State  sovereignties.  And 
it  will  hardly  be  said,  that  this  power,  in  relation  to  the  last-men- 
tioned objects,  was  deemed  necessary  to  be  thus  specially  given  to 
the  new  government,  in  order  to  authorize  it  to  make  needful  rules 
and  regulations  respecting  the  ships  it  might  itself  build,  or  arms 
and  munitions  of  war  it  might  itself  manufacture  or  provide  for  the 
public  service.  (Scott  v.  Sandford,  19  How.  436.)  2 Story’s 

Const.  3d  ed.  p.  196,  and  § 1324,  1325. 

By  this  conquest  (the  acquisition  of  New  Mexico,  in  1846),  this 
substitution  of  a new  supremacy,  although  the  former  political  re- 
lations of  the  inhabitants  were  dissolved,  their  private  relations, 
their  rights,  vested  under  the  government  of  their  former  allegiance, 
or  those  arising  from  contract  or  usage,  remained  in  full  force  and 
unchanged,  except  so  far  as  they  were  in  their  nature  and  character 
found  to  be  in  conflict  with  the  Constitution  and  laws  of  the  United 
States,  or  with  any  regulation  which  the  conquering  power,  and 
occupying  authority  should  ordain.  Leitensdorfer  v.  Webb,  20 
How.  336. 


242 


THE  UNITED  STATES,  233. 


[Art.  IV., 


To  what 
did  the 
saving 
clause 
refer  ? 


“ And  nothings  in-  this  Constitution  shall  be  so  Con- 
strued as  to  Prejudice  the  Claims  of  the  United  States  or 
of  any  particular  State. ’’-r-This  member  of  the  clause  applied 
to  the  claims  of  North  Carolina  and  peorgia,  and  could  apply  to 
nothing  else.  Scott  v.  Sandford,  19  How.  431 ; 2 Story’s  Const.  3d 
ed.  p.  197.  It  was  to  exclude  the  conclusion  that  either  party 
would  surrender  their  rights.  Id.  and  p.  212. 


Howis  Sec.  IV. — The  United  States  shall  guarantee  to 
form  of  every  State  in  this  Union  a republican  form  of  govern- 

government  Tin  , ~ , . 

&c..  guaran-  ment,  and  shall  protect  each  oi  them  against  invasion  ; 

t66(i  ? • • • 

474-476.  and  on  application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  be  convened),  against 
domestic  violence. 


Why  “the  23$.  “The  United  States." — This  is  the  only  instance  in  the 
United^  Constitution  where  the  government,  by  its  corporate  name,  has 
tates  • covenanted  for  any  duty.  The  11  powers”  of  the  government  are 
vested  in  the  respective  departments  thereof;  and,  as  to  the 
14, 15, 165,  “ necessary  and  proper  ” legislation,  that  is  specially  conferred 

upon  Congress.  Here  the  obligation  is  from  the  “ United  States” 
to  the  “States but  whether  to  be  exercised  by  Congress  or  the 
138,  275-279.  President,  is  one  of  the  questions  which  has  grown  out  of  the  re- 
construction measures. 

One  of  the  grounds  of  impeachment  alleged  against  the  President 
was  the  usurpation  of  this  power.  The  Report  on  Impeachment  of  the 
President,  55.  In  the  case  of  Luther  v.  Borden,  7 How.  42,  Chief- 
Justice  Taney  said : “It  rests  with  Congress  to  decide  what  govern- 
What  de-  ment  is  the  established  one  in  a State.  For,  as  the  United  States 
partment  is  guarantee  to  each  State  a republican  government,  Congress  must 
Buclfpoliti-  necessarily  decide  what  government  is  established  in  the  State  before 
cal  qaes-  it  can  determine  whether  it  is  republican  or  not.  And  when  the 
tions  ? senators  and  representatives  of  a State  are  admitted  into  the  councils 

195.  of  the  Union,  the  authority  of  the  government  under  which  they 

are  appointed,  as  well  as  its  republican  character,  is  recognized  by 
the  proper  constitutional  authority.  And  its  decision  is  binding  on 
every  other  department  of  the  government,  an^i  could  not  be  ques- 
tioned in  a judicial  tribunal.”  Quoted  and  approved.  Ex  parte 
Coupland,  26  Tex.  434;  Federalist,  No.  21,  p.  112. 

Define  “to  “Shall  Guarantee.” — [L.  Lat.  guarrantar , guarrantisare .] — To 
guarantee  ” ? become  responsible  for ; to  warrant ; to  undertake  for  another, 
that,  if  that  other  does  not  do  the  thing,  the  party  guaranteeing 
will  himself  do  it.  The  obligation  of  a guaranty  is  essentially  in 
the  alternative.  Britton,  chap.  75;  3 Kent’s  Com.  121;  Story  on 
Contracts,  § 852;  Fell  on  Guaranties,  1.  The  word  seems  to  be 
essentially  the  same  with  warranty.  Id.  Burrill’s  Law  Die., 
220-233,  226,  Guaranty,  or  Guarantee.  For  a technical  and  limited  significa- 
829-232.  tion,  see  Parker  v.  Culvertson,  1 Wall.  Jr.  Ct.  Ct.  149,  153. 

“ To  every  State  in  this  Union.” — State  here  also  means  as 
well  the  States  which  agreed  to  the  Constitution,  as  also  the  inchoate 
States  or  organized  territories,  and  the  new  States,  since  admitted,  or 


Sec.  4.] 


REPUBLICAN  GOVERNMENT,  233. 


243 


hereafter  to  be  admitted.  A “ State  ” (for  the  purpose  of  the  judicial 
power)  must  be  a member  of  the  Union.  It  is  not  enough  to  be  an 
organized  political  body  within  the  limits  of  the  Union.  Scott  v.  205. 
Jones,  5 How.  343,  377  ; Cherokee  Nation  v.  Georgia,  5 Pet.  18. 

But  this  is  not  so,  as  to  the  guaranty  of  a republican  form  of  govern- 
ment. That  is  in  favor  of  the  people — the  citizens — as  well  as  the 
States. 


“A  Republican  form  of  Government.” — A government  of  the  What  is  a 
people ; it  is  usually  put  in  opposition  to  a monarchical  or  aristo-  ^P^b^can 
cratic  government.  This  clause  supposes  a government  already  govern. 
established,  and  this  is  the  form  of  government  the  United  States  ment  ? 
have  undertaken  to  guarantee.  (Story’s  Const.  § 1807.)  Burrill’s  475. 
Law  Die.,  Republican  Government. 


This  term  has  of  course  received  no  practical  authoritative  defi-  To  what 
nition.  It  supposes  a pre-existing  government  of  the  form  which  is  does  the 
to  be  guaranteed.  As  long,  therefore,  as  the  existing  republican  Intend  ? 
forms  are  continued  by  the  States,  they  are  guaranteed  by  the 
federal  Constitution.  Whenever  the  States  may  choose  to  establish  What  is  th« 
other  republican  forms,  they  have  a right  to  do  so,  and  to  claim  the  restriction  ? 
federal  guaranty  for  the  latter.  The  only  restriction  imposed 
on  them  is,  that  they  will  not  exchange  republican  for  anti-re- 
publican constitutions;  a restriction  which  it  is  presumed  will 
hardly  be  considered  as  a grievance.  (Federalist,  No.  21  ; see  Mon- 
tesquieu, B.  9,  chap.  1,  2 ; 1 Tuck.  Black.  App.  366,  367.)  Story’s 
Const.  § 1817  ; Federalist,  No.  43,  pp.  214,  215.  But  this  still  leaves 
the  term  undefined,  except  so  far  as  the  description  may  be  derived 
from  the  character  of  the  State  governments  when  they  formed 
this  Constitution . The  restrictions  which  they  had  imposed  upon  238-241. 
themselves,  and  to  which  they  agreed  when  they  made  this  Con-  245-275. 
stitution  the  supreme  law ; and  the  rights  of  the  citizens  secured  16_18- 
by  the  amendments,  which  constitute  a Bill  of  Rights.  The  first 
guaranty  is  the  elective  principle.  But  upon  whom  the  elective  How  is  it 
franchise  shall  be  conferred  is  not  defined,  and  must  be  controlled  ^ected  by 
by  circumstances.  The  right  need  not  be  universal ; and  must  not  principle?* 
be  too  restricted.  The  next  is,  the  model,  upon  which  all  our 
governments  are  based,  legislative,  executive,  and  judicial.  Cer- 16-18. 
tainly  the  guaranty  is  to  enforce  upon  the  States  the  restrictions 
imposed  upon  them  in  the  federal  Constitution ; that  is,  the  States  275-278. 
shall  not  exercise  the  prohibited  powers,  nor  the  powers  which  139-143. 
have  been  granted  to  and  exercised  by  Congress.  And  now,  prac- 
tically, we  have  the  great'  examples,  that  where  States  deny  the  71-138. 
obligation  of  the  federal  Constitution,  and  form  a confederation  What  has 
among  themselves  upon  the  same  model,  although  they  may  retain  effectof  the 
the  same  forms  and  constitutions  of  the  State  governments,  yet  the  rebellion  ? 
United  States  have  regarded  it  as  an  occasion  for  the  exercise  of 
this  power ; have  declared  such  existing  State  governments  as  in  274-276,  279. 
fact  not  republican ; have  annulled  them,  and  have  required  new 
Constitutions  to  be  formed,  based  upon  the  organic  change,  which 
had  destroyed  slavery,  and  thus  settled  that  it  was  no  longer  a 
republican  institution.  About  the  right  to  exercise  this  power, 
there  has  been  no  dispute.  Unfortunately,  the  controversy  has 
been,  as  to  what  department  of  the  government  of  the  United  States 


244 


REPUBLICAN  GOVERNMENT,  233,  234.  [Art.  I V., 


Who  shall  shall  judge  of  the  necessity  and  apply  the  remedy,  and  what  shall 
judge.  bg  ^e  extent  of  the  organic  changes  in  the  States  ? If  the  prac- 
tice and  common  understanding  in  the  admission  of  new  States, 
and  the  precedent  of  Luther  v.  Borden,  7 How.  1,  are  to  control, 
then  the  question  would  seem  to  be  settled  in  favor  of  the  power 
of  Congress  to  determine  when  a State  government  is  republican 
inform  and  in  practice.— [Editor.  See  President  Lincoln’s  procla- 
mation of  1st  Jan.,  1863,  and  the  amnesty  proclamations,  and  the 
proclamations  of  President  Johnson,  appointing  provisional  gov- 
ernors ; his  directions  declaring  what  the  State  conventions  shall 
do,  and  declaring  civil  government  restored.  See  also  his  mes- 
sages and  veto  messages  upon  the  subject;  the  debates  of  the 
thirty-ninth  and  fortieth  Congresses  everywhere ; the  President’s 
Message  to  the  second  session  of  the  fortieth  Congress,  Dec.  3, 
1867;  the  reports  of  the  joint  committee  upon  reconstruction; 
the  reconstruction  acts ; the  majority  and  minority  reports  of  the 
committee  on  judiciary  upon  the  impeachment  of  the  President, 
and  the  debates  of  the  thirty-ninth  and  fortieth  Congresses  thereon. 
McPherson’s  Manual,  and  Paschal’s  Annotated  Digest,  note  1174. 

“ I take  it  that  the  States  would  not  be  allowed  to  establish  pri- 
mogeniture ; to  abolish  the  trial  by  jury  in  all  cases ; to  unite  the 
Church  and  State ; nor  in  any  way  to  violate  the  great  cardinal 
principles  of  liberty  secured  by  the  national  Bill  of  Rights,  and  which 
the  fourteenth  amendment  seeks  to  extend  to  the  States.  I 
cannot  subscribe  to  the  omnipotence  of  a State  legislature,  or 
that  it  is  absolute  and  without  control,  although  its  authority  should 
principles  of  not  restrained  by  the  Constitution  or  fundamental  law  of  the 
a republican  State.  The  nature  and  end  of  legislative  power  will  limit  the  ex- 
form of  gov-  ercise  of  it.  This  fundamental  principle  flows  from  the  very  nature 
ernment . 0f  our  free  republican  governments,  that  no  man  should  be  com- 
pelled to  do  what  the  law  does  not  require,  nor  refrain  from  doing 
that  which  the  law  permits.  There  are  certain  vital  principles  in 
our  free  republican  governments,  which  will  determine  and  over- 
rule an  apparent  flagrant  abuse  of  legislative  power,  such  as  to 
authorize  manifest  injustice  by  a positive  law,  or  to  take  away  that 
security  for  personal  liberty  or  private  property,  for  the  protection 
143,  156-161.  whereof  government  was  established.”  (Calderv.  Bull,  3 Dali.  386.) 

Wynehamer  v.  The  People,  13  N.  Y.  (3  Kern.),  391,  392.  The 
cases  of  ex  post  facto  law;  impairing  contracts;  making  a man 
accuse  himself ; taking  A’s  property  to  give  to  B ; punishing  inno- 
cence as  guilt,  and  violating  property,  cited.  (Calder  v.  Bull,  3 
Dali.  386;  Fletcher  v.  Peck,  3 Cranch,  385  ; Dash  v.  Van  Kleek,  7 
Johns.  477  ; Taylor  v.  Porter,  4 Hill,  146  ; Goshen  v.  Stonington,  4 
Conn.  225.)  Wynehamer  v.  The  People,  13  N.  Y.  391,  392.  See 
Wilkinson  v.  Leland,  2 Pet.  653;  Harding  v.  Goodlet,  3 Yerg.  41 ; 
2 Kent’s  Com.  11th  ed.  p.  339,  and  notes. 

That  State  must  not  boast  of  its  civilization,  nor  of  its  progress 
in  the  principles  of  civil  liberty,  where  the  legislature  has  power 
to  provide  that  a man  may  be  condemned  unheard.  Oakley  v.  As- 
pinwall,  4 Comstock,  522. 

What  is  234.  “And  shall  protect  each  of  them  against  Inva- 
invaaion?  sion.” — Invasion  has  been  defined  in  note  133.  Tho  means  to  be 


275-277. 


What  laws 
would  in- 
fract the 


Sec.  4.] 


INVASION,  INSURRECTION,  235. 


245 


employed  are  the  whole  powers  of  declaring  war  and  its  incidents.  233. 
See  Act  of  12th  Jan.  1862,  12  St.  589,  590.  The  latitude  of  expres- 117-183. 
sion  here  used,  secures  each  State  not  only  against  foreign  hostility, 
but  against  ambitious  or  vindictive  enterprises  of  its  more  power- 
ful neighbors.  Story’s  Const.  § 1818;  Federalist,  No.  43,  p.  215. 

235.  “And  on  the  Application  of  the  Legislature,  or  of  who  are 
the  Executive  (when  the  Legislature  cannot  be  Convened),  Jhe  Legisla- 
AGrAiNST  Domestic  Violence.” — The  President  must  determine  233° 234. 
what  body  of  men  constitute  the  legislature,  and  who  is  the  gov- 
ernor; which  is  the  government  and  which  party  is  unlawfully  476. 
arrayed  against  it,  before  he  can  act.  Luther  v.  Borden,  7 How. 

43-45.  The  history  of  the  rebellion  affords  us  these  examples:  1. 

The  case  of  Virginia.  A large  majority  of  the  legislature  of  the 
State  adhered  to  the  rebellion,  and  after  an  ordinance  of  secession  Give  the 
Virginia  became  one  of  the  “Confederate  States  of  America.”  But  example  of 
Congress  recognized  the  minority  of  the  legislature  assembled  at  ^ irginia  ? 
Wheeling  as  the  legislature  of  Virginia,  with  authority  to  consent  229,  230. 
to  the  creation  of  the  new  State  of  West  Virginia,  which  was  ad- 
mitted into  the  Union.  2.  In  the  case  of  Missouri.  The  majority  of  Mis- 
of  the  legislature  and  the  governor  adhered  to  the  rebellion;  and,  souri? 
after  the  commencement  of  hostilities,  passed  an  ordinance  of  se- 
cession; and  the  legislature  elected  senators,  and  a minority  of  the 
people  elected  representatives  to  the  Confederate  Congress  at 
Richmond.  This  was  in  accordance  with  an  enabling  act  of  that 
Congress,  and  the  State  was  admitted  as  a member  of  the  “Con- 
federate States,”  and  continued  to  be  represented  until  the  over- 
throw of  the  rebellion.  On  the  other  hand,  Missouri  retained 
its  place  in  the  Union  through  the  agency  of  a convention  elected 
by  the  authority  of  an  act  of  the  legislature  passed  in  I860,  which 
convention,  having  refused  to  pass  an  ordinance  of  secession,  was 
reconvened  upon  the  call  of  its  president,  and  was  recognized  as 
the  lawful  authority  of  Missouri  by  the  government  of  the  United 
States.  3.  In  the  case  of  Kentucky.  The  legislature  refused  to  Of  Ken- 
call  a convention  or  to  pass  an  ordinance  of  secession.  But  aeon-  tucky? 
vention  of  rebels  did  assemble  and  pass  an  ordinance  of  secession; 
and  senators  and  representatives  were  elected  to  the  Congress  of 
the  “Confederate  States,”  who  served  until  the  close  of  the  rebel- 
lion. 4.  Louisiana.  This  was  one  of  the  seven  original  seceded  of  Louis! 
States  which  adopted  the  Confederate  Constitution  ordained  at  ana? 
Montgomery,  Alabama,  in  1861.  After  the  occupation  of  Louisi- 
ana by  the  federal  troops,  a quorum  of  the  rebel  legislature  could 
not  be  obtained.  But  it  was  solemnly  decided  by  the  Supreme 
Court  of  Louisiana,  that  so  long  as  a single  parish  remained  loyal 
to  the  Confederacy,  such  parish,  or  minority  of  the  people,  should 
be  regarded  as  the  State  of  Louisiana;  and  that  the  conquered  dis- 
tricts of  the  State  were  lost  to  it,  and  would  so  remain  until  re- 
conquered or  restored  by  a treaty  of  peace.  5.  Arkansas  and  Ten-  Arkansas 
nessee  had  the  same  history  as  Louisiana.  And  yet  all  these  prac-  and  Tenros- 
tically  dissolved  corporations  and  their  exiled  governors  continued  see  ? 
to  be  recognized  by  the  Confederate  government  as  the  lawful  au- 
thorities of  those  States.  6.  Maryland.  The  majority  of  the  legis- Of  Mary- 
lators  being  known  to  side  with  the  rebellion,  the  assemblage  of land  ? 


246 


DOMESTIC  VIOLENCE,  235.  [Arts.  V.,  VI., 


What,  is 
“ domestic 
violence”? 


that  body  was  prevented  by  the  military  power  of  the  United 
What  is  the  States.  Therefore,  the  country  seems  to  be  estopped  upon  the  doc- 
u°on  which  tr*De’  that  w^en  the  exigencies  of  the  republic  require  it,  the  gov- 
the  country  eminent  of  a State,  whether  regular  or  irregular,  majority  or  minori- 
is  estopped?  ty,  which  adheres  to  the  Union  and  acknowledges  the  supremacy 
of  the  federal  Constitution,  will  be  recognized  and  treated  as  the 
lawful  legislature  and  executive  entitled  to  the  guaranty  to  be 
protected. 

“Against  Domestic  Violence.” — By  the  first  act  of  Congress 
to  secure  this  guaranty  (28th  Feb.,  1795,  1 Stat.  424)}  it  is  pro- 
vided, that  “ in  case  of  an  insurrection  in  any  State  against  the 
government  thereof,  it  shall  be  lawful  for  the  President  of  the 
United  States,  on  application  of  the  legislature  of  such  State,  or 
of  the  executive  (when  the  legislature  cannot  be  convened),  to 
call  forth  such  number  of  the  militia  of  any  State,  or  States,  as 
may  be  applied  for,  as  he  may  judge  sufficient  to  suppress  such 
insurrection.”  Luther  v.  Borden,  7 How.  43 ; Brightly ’s  Digest, 
p.  440,  § 1-4. 

If  there  be  an  armed  conflict,  it  is  a case  of  “ domestic  vio- 
lence,” and  one  of  the  parties  must  be  in  insurrection  against  the 
lawful  government.  As  the  law  gives  a discretionary  power  to 
the  President,  to  be  exercised  by  him  upon  his  own  opinion  of 
certain  facts,  he  is  the  sole  and  exclusive  judge  of  the  existence 
of  those  facts.  If  he  err,  Congress  may  apply  the  proper  remedy. 
But  the  courts  must  administer  the  law  as  they  find  it.  (Martin 
v.  Mott,  12  Wheat.  29-31.)  Luther  v.  Borden,  7 How.  44,  45. 
And  see  Act  of  12th  July,  1861.  12  St.  257;  2 Brightly’s  Dig. 

1231,  Tit.  Insurrection;  United  States  v.  One  hundred  packages, 
11  Am.  L.  R.  419 ; Kulp  v.  Ricketts,  20  Leg.  Int.  228;  Val- 
landigham’s  Trial,  259 ; Hodgson  v.  Millwood,  20  Leg.  Int.  60, 
164;  Ohio  v.  Bliss,  10  Pittsburgh  L.  J.  304.  The  acts  upon 
“Insurrection”  are  fully  collected  in  2 Brightly’s  Dig.  p.  1230- 
1239.  The  framers  of  the  Constitution  seemed  to  have  looked  to 
the  possibility  of  domestic  violence  by  the  slaves.  Federalist,  No. 
43,  p.  246. 

Article  V. 

How  are  The  Congress,  whenever  two-thirds  of  both  houses 
mentstobe  shall  deem  it  necessary,  shall  propose  amendments  to 
this  Constitution,  or,  on  the  application  of  the  legisla- 
139,144, 145.  tures  of  two-thirds  of  the  several  States,  shall  call  a 
convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  Constitution,  when  ratified  by  the  legislatures 
of  three-fourths  of  the  several  States,  or  by  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress ; 


01.1,2.] 


AMENDMENTS,  236,  237. 


247 


provided,  that  no  amendment,  which  may  be  made  477. 
prior  to  the  year  one  thousand  eight  hundred  and 
eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article;  and 
that  no  State,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate. 

230.  Congress  may  Propose  Amendments,  &c. — These  terms  is  the  Presi- 
need  no  definition.  Upon  a call  of  Congress  in  regard  to  the  sub-  dent’s  ap- 
mission  of  the  fourteenth  amendment  to  the  legislatures  of  the  Pessary? 
States,  President  Johnson  more  than  intimated  an  opinion,  that 
the  resolution  proposing  the  amendment  ought  to  be  submitted  to 
the  President’s  approval.  But  the  practice  has  been  otherwise: 
and  as  the  reason  for  such  a rule  is  superseded  by  the  “two-  66-70. 
thirds  ” vote,  the  rule  itself  ought  to  cease.  It  has  been  held  that  275-277. 
the  approval  of  the  President  is  not  necessary.  Hollingsworth  v. 

Virginia,  3 Dali.  378.  All  the  amendments  have  been  proposed  to  244, 274,  27(\ 
the  legislatures;  none  to  conventions  of  the  States.  See  Fed- 
eralist, No.  43;  Story’s  Const.  § 1826-1831;  1 Tucker’s  Black.  242, 
Com.  App.  371,  372.  The  amendments  when  made  are  binding 
upon  the  States. 

Article  YI. 

ri.l  All  debts  contracted,  and  engagements  entered  what  debts 

• in  i -1  . ’ , . ~ 0 . . , __  _ did  the 

into,  before  the  adoption  01  this  Constitution,  shall  be  United 
as  valid  against  the  United  States,  under  this  Consti-  assume  ? 
tution,  as  under  the  Confederation. 

237.  United  States  to  Pay  the  Debts  op  the  Confed-  Explained. 
eration. — This  was  but  asserting  a principle  of  moral  obligation, 
which  always  applies  to  revolutions.  See  Story’s  Const.  § 1832- 
1835 ; Journal  of  Convention,  291 ; Jackson  v.  Lunu,  3 Johns. 

Cases,  109;  Kelly  v.  Harrison,  2 Id.  29;  Terrett  v.  Taylor,  9 Cr. 

50;  Rutherford  Inst.  B.  2,  ch.  9,  § 1,  2;  ch.  10,  § 14,  15;  Vattel, 

Prelim.  Dis.  ch.  1,  § 1 ; ch.  5,  § 64;  ch.  14,  § 214-216  ; Grotius,  B. 

2,  ch.  9,  § 8,  9;  Federalist,  Nos.  43,  84;  1 Tuck.  Black.  Com.  App. 

368  ; Confederation,  Art.  XII.  ante , p.  19. 

The  principle  is,  that  revolution  ought  to  have  no  effect  what- 
soever upon  private  rights  and  contracts,  or  upon  the  public  obli- 
gations of  nations.  Terrett  v.  Taylor,  9 Cr.  50. 

[2.]  This  Constitution,  and  the  laws  of  the  United  what  is  the 
States  which  shall  be  made  in  pursuance  thereof,  and  lawTofthe 
all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land ; and  the  judges  in  every  State  shall 


248 


SUPREME  LAW,  238,  239. 


[Art.  VI., 


Bound. 

478. 


What  is 
the  Consti- 
tution ? 

2. 

195,  242. 

2,  67,  68. 


179,  245. 
195-198. 


What  is  a 
law  ? 


246. 


195,  203. 

211. 

188. 


478. 


be  bound  thereby,  any  thing  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 

23§.  This  Constitution  creates  the  government.  Of  course  it 
stands  paramount.  And  if  any  law  of  Congress,  treaty,  or  State 
law,  be  found  to  be  a plain  infraction  of  this  Constitution,  they  will 
be  held  to  be  void.  The  object  was  to  establish  a government 
which,  to  the  extent  of  its  powers,  is  supreme.  Story’s  Const. 
§ 1837  ; Able  man  v.  Booth,  21  How.  517,  520.  A law,  by  the  very 
meaning  of  the  term,  includes  supremacy.  Story’s  Const.  § 1837. 
And  the  government  must  be  strong  enough  to  execute  its  own  laws, 
by  its  own  tribunals.  Ableman  v.  Booth,  21  How.  517.  The  su- 
premacy could  not  peacefully  be  maintained  unless  clothed  with 
judicial  power.  Id.  518,  519.  This  clause  fully  compared  with 
the  judicial  power.  Id. 

239.  “And  all  Laws  of  the  United  States  which  shall 

BE  MADE  IN  PURSUANCE  THEREOF.” — A LAW  is  a Solemn 
expression  of  legislative  will.  Louisiana  Civil  Code,  Art.  I.  It 
is  a rule  of  action.  It  is  a rule  of  civil  conduct  prescribed  by  the 
“supreme”  power  in  a State.  1 Bl.  Com.  44;  1 Kent’s  Com.,  Lect. 
XX.  p.  447.  It  includes  supremacy.  Story’s  Const.  § 1738.  See 
Federalist,  Nos.  33,  64;  Gibbons  v.  Ogden,  9 Wh.  210,  211 ; Mc- 
Culloch v.  Maryland,  4 Wh.  405,  406.  All  such  laws,  made  by  the 
general  government,  upon  the  rights,  duties,  and  subjects  specially 
enumerated  and  confided  to  their  jurisdiction,  are  necessarily  exclu- 
sive and  supreme,  as  well  by  express  provision  as  by  necessary  im- 
plication. Sims’  Case,  7 Cush.  729  And  the  general  government 
has  the  power  to  cause  such  laws  to  be  carried  into  full  execution, 
by  its  own  powers,  without  dependence  upon  State  authority,  with- 
out any  let  or  restraint  imposed  by  it.  Id. 

A law  is  made  in  pursuance  of  the  Constitution,  whenever  it  is 
enacted  by  a constitutional  quorum  of  Congress  and  approved  by 
the  President ; or,  being  returned  with  his  objections,  is  passed  over 
the  veto  by  the  necessary  two-thirds  vote.  It  then  becomes  the 
supreme  law ; and  is  generally  regarded  as  binding  until  decided  to 
be  unconstitutional  by  the  Supreme  Court  of  the  United  States,  in 
a proper  case  arising  upon  the  law. 

After  grave  consideration,  cases  might  arise  where,  after  the  laws 
had  been  passed,  with  all  constitutional  forms  and  time,  and  placed 
on  statute  books,  it  would  be  the  duty  of  the  executive  to  refuse  to 
carry  them  out,  regardless  of  consequences.  This  would  be  involv- 
ing the  country  in  a justifiable  civil  war.  President  Johnson’s  Mes- 
sage, 3d  Dec.,  1867.  The  editor  cannot  give  this  sentiment  with- 
out expressing  his  disbelief  in  its  correctness. 

The  sovereignty  to  be  created  was  to  be  limited  in  its  powers  of 
legislation,  and  if  it  passed  a law  not  authorized  by  its  enumerated 
powers,  it  was  not  to  be  regarded  as  the  supreme  law  of  the  land, 
nor  were  the  State  judges  bound  to  carry  it  into  execution.  And 
as  the  courts  of  a State,  and  the  courts  of  the  United  States,  might, 
and  certainly  would,  often  differ  as  to  the  extent  of  the  powers  con- 
ferred by  the  government,  it  was  manifest  that  serious  controversies 
would  arise  between  the  authorities  of  the  United  States  and  of  the 


Cl.  2.] 


TREATIES,  240. 


249 


States,  which  must  be  settled  by  force  of  arms,  unless  some  tribunal  138. 
was  created  to  decide  between  them  finally  and  without  appeal. 

Ableman  v.  Booth,  21  How.  519,  520.  The  Supreme  Court  of  the 
United  States  shown  to  be  that  tribunal.  Id.  520-526. 

And  no  power  is  more  clearly  conferred  by  the  Constitution 
and  laws  of  the  United  States,  than  the  power  of  this  court  to  de- 
cide, ultimately  and  finally,  all  cases  arising  under  such  Constitution 
and  laws,  &c.  Id.  525. 

240.  A treaty  is  a solemn  agreement  between  nations.  Fos-  Define  a 
ter  y.  Neilson,  2 Pet.  314.  treatY ? 

Whenever  a right  grows  out  of,  or  is  protected  by,  a treaty,  it  is 
sanctioned  against  all  the  laws  and  judicial  decisions  of  the  States ; What  is  the 
and  whoever  may  have  this  right,  it  is  to  be  protected.  Owing  v.  rule  as  t0 
Norwood’s  Lessee,  5 Cr.  348;  People  v.  Gerke,  4 Am.  L.  R.  604;  treatj®|? 

6 Opin.  291.  But  though  a treaty  is  a law  of  the  land,  and  its  pro- 
visions must  be  regarded  by  the  courts  as  equivalent  to  an  act  of 
the  legislature  when  it  operates  directly  on  a subject,  yet,  if  it  be 
merely  a stipulation  for  future  legislation  by  Congress  it  addresses 
itself  to  the  political  and  not  to  the  judicial  department,  and  the 
latter  must  await  the  action  of  the  former.  Foster  v.  Neilson,  2 
Pet.  253.  “ Shall  be  confirmed,”  was  construed  to  act  presently  on 

the  perfect  Spanish  grants.  Id.  A treaty  ratified  with  proper 
formalities,  is,  by  the  Constitution,  the  supreme  law  of  the  land, 
and  the  courts  have  no  power  to  examine  into  the  authority  of  the 
persons  by  whom  it  was  entered  into  on  behalf  of  the  foreign  na- 
tion. Doe  v.  Braden,  16  How.  635.  Though  a treaty  is  the  law 
of  the  land,  under  the  Constitution,  Congress  may  repeal  it,  so  far 
as  it  is  municipal  law,  provided  its  subject-matter  be  within  the 
legislative  power.  Taylor  v.  Morton,  2 Curt.  C.  C.  454 ; Talbot  v. 

Seaman,  1 Cr.  1 ; Ware  v.  Hylton,  3 Dali.  361  ; Story’s  Const. 

§ 1838. 

A treaty  concluded  by  the  President  and  Senate  binds  the  nation,  What  is  the 
in  the  aggregate,  and  all  its  subordinate  authorities,  and  its  citizens  obligation 
as  individuals,  to  the  observance  of  the  stipulations  contained  in  it.  of  a treaty? 
(Ware  v.  Hylton,  3 Dali.  199;  Worcester  v.  Georgia,  6 Pet.  575.) 

Fellows  v.  Dennison,  23  N.  Y.  R.  (9  Smith),  427. 

“ Supreme  Law  of  the  Land.” — The  highest  law ; that  which  What  is  the 
binds  all  the  people  of  the  nation,  and  cannot  be  abrogated  by  the  supreme 
States.  It  was  intended  to  declare  that,  to  the  extent  of  its  pow-  2^6?23& 
ers,  the  Constitution,  laws,  and  treaties  of  the  United  States,  are 
prescribed  by  the  “supreme  power  of  the  State,”  and  are  supreme. 

This  power'  of  the  government  can  be  exercised  by  Congress,  or, 
to  the  extent  of  the  treaty-making  power,  by  the  President  and 
Senate.  The  national  rule  of  action  then  is:  1.  The  Constitution;  Whatis  th« 
2.  Acts  of  Congress;  3.  Treaties;  4.  The  judicial  decisions  as  national rul® 
precedents.  The  State  constitutions,  laws,  and  decisions  on,  are  of  action* 
subordinate  to  these.  See  Ableman  v.  Booth,  21  How.  525; 

Story’s  Const.,  § 1836-1841 ; Federalist,  No.  33 ; Gibbons  v.  Og- 
den, 9 Wheat.  210,  211;  McCulloch  v.  Maryland,  4 Wheat.  405, 

406;  Letter  of  Congress,  13th  April,  1787  ; 12  Journal  of  Con- 
gress, 32-36;  1 Wirt’s  State  Papers,  45,  47,  71,  81,  145;  Sergt’s 
Const,  ch.  21,  pp.  212,  219 ; ch.  34,  pp.  406,  407;  Ware  v.  Hylton, 

21 


250 


OATH  OF  OFFICE,  241,  242. 


[Art.  VI., 


How  is  a 
treaty  to  be 
regulated  ? 

195. 


What  was 
Jefferson’s 
opinion  ? 


139,  154-161 
203,  210,  211 
218,  219,  226, 
228. 


142,  143. 


239. 


Who  shall 
be  bound  by 
the  oath 
of  office  ? 

19,  35, 46. 
174,  1S2 


An3T  reli- 
gious test 
required  ? 


What 
officers  are 
embraced  ? 
229-231. 
241-242. 

274-285. 


What  was 
the  oath  y 


3 Dali.  270-27*7 ; Journal  of  Convention,  222,  282,  283,  293;  Fed- 
eralist, Nos.  44,  64;  Debates  on  the  British  Treaty  of  1794;  Jour- 
nal of  the  H.  of  Reps.,  6th  April,  1796;  Marshall’s  Life  of  Wash- 
ington, ch.  8,  pp.  650-659.  Sergt’s  Const  3d  edition,  ch.  34, 
p.  410  ; 1 Debates  on  British  Treaty,  by  Bache  (1796),  pp.  374-386  : 

4 Elliot’s  Debates,  244-248.  A treaty  is  to  be  regarded  by  courts 
of  justice  as  equivalent  to  an  act  of  the  legislature  whenever  it 
operates  itself  without  the  aid  of  any  legislative  provision.  Foster 
v.  Neilson,  2 Pet.  314. 

See  Jefferson’s  Opinion  in  Washington’s  Cabinet,  that  a treaty 
was  a law  of  a superior  order  (G-reek  Treaty  of  1790),  and  could 
not  be  repealed  by  a future  one ; and  see  a different  view,  4 Jeffer- 
son’s Corresp.  497,  498;  Wheaton’s  Life  of  Pinckney,  p.  517. 

, 241.  The  Constitution  or  laws  of  any  State  to  the  contrary 

’ notwithstanding.  It  matters  not  whether  the  action  of  a State  is 
’ organic,  and  in  its  Constitution,  or  any  ordinance ; or  whether  it 
be  in  a statute,  if  it  violate  the  Constitution,  laws,  or  treaty  of  the 
United  States,  it  is  simply  void,  and  “ the  judges  of  every  State  ” 
are  bound  by  the  supreme  law,  and  not  by  the  State  law.  Marbury 
v.  Madison,  1 Cr.  137,  176;  Calder  v.  Bull,  3 Dali.  386;  Satterlee 
v.  Matthewson,  2 Pet.  380,  413;  Ex  parte  G-arland,  4 Wall.  399; 
Cummings  v.  Missouri,  5 Wall.  277,  329. 

All  courts  will  declare  State  Constitutions  and  laws,  which  clearly 
violate  the  Constitution,  laws,  or  treaties  of  the  United  States,  void. 
But  only  in  clear  cases.  Id.  See  particularly  Ableman  v.  Booth, 
21  How.  507-526. 

[3.]  The  senators  and  representatives  before  men- 
tioned, and  the  members  o the  several  State  legisla- 
tures, and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be 
bound,  by  oath  or  affirmation,  to  support  this  Consti- 
tution ; but  no  religious  test  shall  ever  be  required  as 
a qualification  to  any  office  or  public  trust  under  the 
United  States. 

242.  “ The  Senators,”  &c. — The  classification  embraces  all  tho 
legislative,  executive,  and  judicial  officers  of  the  United  States, 
and  of  the  States.  The  practice  has, also  been  to  embrace  all  the 
ministerial  and  militia  officers  of  the  country.  The  object  doubtless 
was  to  procure  solemn  recognitions  of  the  preceding  clause.  Story’s 
Const.  § 1844-1846.  Especial  attention  is  invited  to  the  four- 
teenth amendment.  The  disqualification  for  participation  in  rebel- 
lion seems  to  be  based  upon  the  higher  obligation  to  observe  this 
oath. 

The  act  of  1st  June,  1789,  prescribed  the  following  oath: — 

A.  /?.,  do  solemnly  swear,  or  afjb'm  (as  the  case  may  be),  that 
I will  support  the  Constitution  of  the  United  States .”  1 Stat.  23;  1 

Brightly’s  Dig.  706. 


CL  3.] 


TEST  OATH,  242. 


251 


No  other  oath  is  required,  “yet  he  would  be  charged  with  in-  480. 
sanity  who  would  contend  that  the  legislature  might  not  superadd 
to  the  oath  directed  by  the  Constitution  such  other  oath  of  office 
as  its  wisdom  might  suggest.”  (McCulloch  v.  Maryland,  4 Wheat. 

41 6-)  The  United  States  v.  Rhodes  (by  Justice  Swayne,  in  Ken- 
tucky, October  T.  1861). 

This  is  the  last  and  closing  clause  of  the  Constitution,  and  in- 174, 182 
serted  when  the  whole  framework  of  the  government  had  been 
adopted  by  the  convention.  It  binds  the  citizens  and  the  States. 

And  certainly  no  faith  could  be  more  deliberately  and  solemnly 
pledged  than  that  which  every  State  has  pledged  to  the  other 
States  to  support  the  Constitution  as  it  is,  in  all  its  provisions,  until 
they  shall  be  altered  in  the  manner  which  the  Constitution  itself  236. 
prescribes.  In  the  emphatic  language  of  the  pledge  required,  it  is 
to  support  this  Constitution.  Ableman  v.  Booth,  21  How.  524,  525. 

The  act  of  Congress  of  2d  July,  1852,  12  Stat.  502,  § 1,  requires  What  is  the 
all  federal  officers  to  take  the  following  oath: — “I,  A.  B.,  dotestoatl1? 
solemnly  swear  (or  affirm),  that  I have  never  voluntarily  borne 
arms  against  the  United  States  since  I have  been  a citizen  thereof ; 
that  I have  voluntarily  given  no  aid,  countenance,  counsel,  or  en- 
couragement to  persons  engaged  in  armed  hostility  thereto ; that 
I have  neither  sought  nor  accepted,  nor  attempted  to  exercise  the 
functions  of  any  office  whatever,  under  any  authority  or  pretended 
authority  in  hostility  to  the  United  States  ; that  I have  not  yielded 
a voluntary  support  to  any  pretended  government,  authority,  power, 
or  Constitution  within  the  United  States,  hostile  or  inimical  thereto. 

And  I do  further  swear  (or  affirm)  that,  to  the  best  of  my  knowl- 
edge and  ability,  I will  support  and  defend  the  Constitution  of  the 
United  States,  against  all  enemies,  foreign  and  domestic;  that  I 
will  bear  true  faith  and  allegiance  to  the  same ; that  I take  this 
obligation  freely,  without  any  mental  reservation  or  purpose  of 
evasion,  and  that  I will  well  and  faithfully  discharge  the  duties  of 
the  office  on  which  I am  about  to  enter,  so  help  me  God.” 

The  oath  may  be  taken  before  any  State  officer  authorized  to  142,  143. 
administer  oaths.  If  it  be  falsely  taken,  or  if  it  be  subsequently 
violated,  it  is  perjury.  The  oath  is  required  of  all  attorneys  prac- 
ticing in  the  federal  courts,  and  before  any  of  the  departments 
of  government,  and  of  all  captains  of  vessels.  2 Brightly ’s  Dig. 
p.  348  and  p.  50  ; 12  St.  610.  It  was  held  by  Judge  Busteed,  of  the 
United  States  District  Court  of  Alabama,  that,  as  to  lawyers,  this 
test  oath  was  unconstitutional. 

The  statute  has  been  held  to  be  unconstitutional  as  to  attorneys  How  far 
of  the  Supreme  Court  of  the  United  States  who  were  such  before 
the  rebellion,  and  who  could  not  take  the  oath  because  of  their  par- tl011a 
ticipation  in  it.  Garland’s  Case,  4 Wall.  381. 

“ No  Religious  Test  ” was  doubtless  used  in  the  sense  of  the  What  is  a 
statute  of  25  Charles  II.,  which  required  an  oath  and  declaration  ^p?0118 
against  transubstantiation,  which  all  officers,  civil  and  military, 
were  formerly  obliged  to  take  within  six  months  after  their  admis-  245. 
sion.  'See  Webster’s  Die.,  Test.  The  object  was  to  cut  off  all  pre-  235. 

tense  of  alliance  between  Church  and  State.  Story’s  Const.  § 184,  481. 


252 


SIGNERS,  243. 


{Art.  VII., 


754 ; 4 Black.  Com.  44,  53-57;  2 Kent’s  Com.  Lect.  24,  34,  35; 
Rawle’s  Const.  ch.  10,  p.  121. 

Article  VII. 

By  how  The  ratification  of  the  conventions  of  nine  States 

Sbe7raU-teS shall  be  sufficient  for  the  establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  same. 

Done  in  Convention,  by  the  unanimous  consent 
of  the  States  present,  the  seventeenth  day  of 
September,  in  the  year  of  our  Lord  one  thou- 
sand seven  hundred  and  eighty-seven,  and  of  the 
independence  of  the  United  States  of  America 
the  twelfth.  In  witness  whereof,  we  have  here- 
unto subscribed  our  names. 


GEORGE  WASHINGTON,  PresidH, 


New  Hampshire. 
John  Langdon, 

Nicholas  Gilman. 

Massachusetts. 
Nathaniel  Gorham, 
Rufus  King. 

New  Jersey. 

Wil:  Livingston, 

David  Brearly, 

Wm.  Paterson, 

Jona:  Dayton. 

Pennsylvania. 

B.  Franklin, 

Thomas  Mifflin, 

Robert  Morris, 

Geo:  Clymer, 

Tho  : Fitzsimons, 

Jared  Ingersoll, 

James  Wilson, 

Gouv:  Morris. 

Delaware. 

Geo:  Read, 

Gunning  Bedford,  Jun’r, 
John  Dickinson, 

Richard  Bassett, 

Jaco:  Broom. 


And  deputy  from  Virginia. 

Connecticut. 

Wm.  Saml.  Johnson, 

Roger  Sherman. 

New  York. 

Alexander  Hamilton 
Maryland. 

James  M’Henry, 

Dan:  of  St.  Thos.  Jenifer, 

Danl.  Carroll. 

Virginia. 

John  Blair, 

James  Madison,  Jr. 

North  Carolina. 

Wm.  Blount, 

Rich’d  Dobbs  Spaight, 

Hu.  Williamson. 

South  Carolina. 

John  Rutledge. 

Charles  Cotes  worth  Pinckney, 
Charles  Pinckney, 

Pierce  Butler. 

Georgia. 

William  Few, 

Abraham  Baldwin. 


Attest:  William  Jackson,  Secretary. 


Art.  1.]  RATIFICATION  BY  THE  STATES,  243. 


253 


243.  “ Ratification  ” [Ratificare;  from  ratus,  valid,  and  facer  e,  Define 
to  make.  Litt.  Sec.  515.  Equivalent  to  “ confirmare”] — Co.  Litt.  ratificatlon  ? 
295 b.  A confirmation  of  a previous  act  done  either  by  the  party  46. 
himself  or  by  another.  (Story  on  Agency,  § 250,  251;  2 Kent’s 
Com.  23V.)  Burrill’s  Law  Die.,  Ratification. 

“Of  the  Conventions  of  nine  States.” — This  was  intended 
to  leave  the  action  to  the  people,  as  the  legislatures  could  only 
make  a league  or  treaty  between  the  parties.  Federalist,  No.  43. 

See  Story’s  Const.  § 1850-1856,  and  621. 

“Between  the  States  ratifying-  the  same.” — “ States  ” is  in  what 
here  used  in  the  sense  of  independent  governments,  which  could 
not  act,  however,  through  their  legislatures;  but  only  through  the  kere  use(i? 
conventions  of  the  people.  But  when , is  not  declared.  That  the 
rejection  by  a convention  was  no  estoppel  upon  a State,  is  proved 
by  the  case  of  North  Carolina,  whose  first  convention  rejected  the 
Constitution.  The  condition  of  the  non-ratifying  States  is  not  de- 
fined ; but  the  principles  of  self-preservation  were  strongly  set 
forth  at  that  day.  Federalist,  43;  No.  2 Kent’s  Com.  Lect.  24, 

30-36;  Rawle’s  Const,  ch.  10,  p.  121;  Story’s  Const.  § 1851,  1852. 

“Establishment,”  is  here  used  in  the  same  sense  as  the  verb  1-13,  248. 
in  the  preamble  : the  putting  the  government  created  by  the  Con- 
stitution into  operation. 

Ratifying  extends  beyond  a literal  definition  of  the  term.  For  To  what 
although  the  “new  States,”  and  the  independent  nation  (Texas)  doesratily- 
which  have  since  been  admitted  into  the  Union,  cannot  be  said  to  ing  ex  en  ? 
have  ratified  the  Constitution  in  the  sense  of  agreeing  to  the  act  229-232* 
done  by  themselves  or  another  for  them ; yet  in  theory  and  in 
practice,  they  have  agreed  to  all  its  obligations ; and  because  of 
this  agreement,  every  citizen  for  himself,  and  each  State  in  its  205, 271. 
sovereign  or  corporate  capacity,  is  bound  by  all  the  obligations 
which  the  Constitution  and  the  amendments  impose.  See  the  able 
opinions  in  Chisholm  v.  G-eorgia,  2 Dali.  4V4.  See  Preface,  p.  v. 

Thus  we  see  that  from  the  first  word  in  the  preamble  to  the  end  6. 
of  this  stupendous  work,  there  is  a constant  recurring  necessity  to 
carefully  weigh  every  word  and  phrase ; to  arrive  at  the  defi- 
nitions by  consulting  the  whole  context,  and  interpreting  each 
part  by  the  ordinary  rules  of  interpretiug  other  great  laws  and 
compacts  among  men ; that  is  by  the  words  of  the  instrument, 
its  context,  its  reason  and  spirit,  the  old  law,  the  mischiefs  and 
the  remedies  intended  to  be  applied ; always  bearing  in  mind  the 
great  principle,  that  the  compact  must  strengthen  rather  than  perish. 

The  Constitution  was  adopted  on  the  lVth  September,  1 7 87,  by  when  was 
the  convention  appointed  in  pursuance  of  the  resolution  of  the  the  Consti- 
Congress  of  the  Confederation,  of  the  21st  February,  178V, 
was  ratified  by  the  conventions  of  the  several  States,  as  follows,  states? 
viz.: — Of  Delaware,  on  the  Vth  December,  1 V 8 V ; Pennsylvania,  • 

12th  Dec.,  1 V 87  ; New  Jersey,  18th  Dec.,  1787  ; Georgia,  2d  Jan.,  229,230. 
1788;  Connecticut,  9th  Jan.,  1788  ; Massachusetts,  6th  Feb.,  1788; 

Maryland,  28th  April,  1788;  South  Carolina,  23d  May,  1788;  New 
Hampshire,  21st  June,  1788;  Virginia,  26th  June,  1788;  New 
York,  26th  July,  1788;  North  Carolina,  21st  Nov.  1789;  Rhode 
Island,  29th  May,  1790.  North  Carolina  rejected  it  at  its  first  con- 
vention. Story’s  Const.  § 1851. 


254 


religion,  244,  245. 


[Amendments, 


When  were 
the  amend- 
ments pro- 
posed? 


What  was 
the  object 
of  the 
amend- 
ments ? 


What  re- 
strictions 
as  to 
religion, 
speech,  the 
press,  and 
right  of  pe- 
tition ? 


Define 

establish- 
ment ” ? 

93,  104,  243. 

What  is 
religion  ? 

481. 


What  was 

the  object  ? 


242.  • 


244.  Amendments  to  the  Constitution. — These  thirteen 
articles  proposed  by  Congress,  in  addition  to,  and  amendment  of 
the  Constitution  of  the  United  States,  having  been  ratified  by  the 
legislatures  of  the  requisite  number  of  the  States,  have  become 
parts  of  the  Constitution.  The  first  ten  amendments  were  pro- 
posed by  Congress  at  its  first  session,  in  1789.  The  eleventh  was 
proposed  in  1794,  the  twelfth  in  1803,  and  the  thirteenth  and  four- 
teenth (in  note  275),  as  explained  in  notes  274,  275-285.  Bright- 
ly’s  Dig.  p.  12,  note  (a). 

For  the  reasons  which  led  to  these  amendments,  see  2 Elliot’s 
Debates,  331,  380-427;  1 Id.  119-122;  3 Id.  139,  140,  149,  153; 
Story’s  Const.  § 1857-1868;  2 American  Museum,  423,  425;  Id. 
534;  Id.  540-546;  Id.  553;  2 Kent’s  Com.  Lect.  24;  Federalist, 
No.  84 ; 1 Lloyd’s  Debates,  414,  420,  430-447.  And  see  the  History 
of  the  Rebellion  for  the  13th  and  14th. 

The  whole  object  seems  to  have  been  to  limit  the  powers  of  the 
government  by  the  prohibitory  power  of  a bill  of  rights,  notwith- 
standing the  government  was  one  of  limited  powers,  and  contained 
many  restrictions  in  the  shape  of  a bill  of  rights.  Story’s  Const. 
§ 1857-1862. 

Article  I. 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech,  or  of 
the  press ; or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  government  for  a redress 
of  grievances. 

245.  “ Establishment.” — Here  it  means  a system  of  religion 
recognized  and  supported  by  the  State ; as  the  Establishment  or 
Established  Church  of  England.  Worcester’s  Dictionary,  Estab- 
lishment ; Story’s  Const.  § 1871. 

ki  Of  Religion.” — [Lat.  Religio , from  re  and  ligo  to  bind.] — An 
acknowledgment  of  our  obligation  to  God  as  our  creator,  with  a 
feeling  of  reverence  and  love,  and  consequent  duty  of  obedience  to 
him,  &c.  Here  a particular  system  of  faith  or  worship.  Worces- 
ter’s Die.,  Religion.  Webster,  Id.  for  a more  comprehensive 
definition. 

The  real  object  of  the  amendment  was,  not  to  countenance,  much 
less  to  advance  Mahometanism,  or  Judaism,  or  infidelity,  by  pros- 
trating Christianity ; but  to  exclude  all  rivalry  among  Christian 
sects,  and  to  prevent  any  national  ecclesiastical  establishment 
which  would  give  to  a hierarchy  the  exclusive  patronage  of  the 
national  government.  Story’s  Const.  § 1877  ; 2 Lloyd’s  Debates, 
195-197.  For  a discussion  of  the  subject,  see  2 Kent’s  Com.  (11 
ed.)  Lect.  24,  pp.  35-37  ; notes  1,  a,  6,  c,  d.  Rawle’s  Const,  ch.  10, 
pp.  121,  122;  Montesq.  Spirit  of  Laws,  B.  24,  ch.  3,  5;  1 Tuck. 
Black.  Com.  App.  296;  2 Id.  Dote  G,  pp.  10,  11  ; 4 Black.  Com. 
41-59;  Lord  King's  Xife  of  Locke,  373  ; Jefferson’s  Notes  on  Yir- 


Art.  I.] 


RELIGIOUS  LIBERTY,  245,  246. 


255 


ginia,  264-270;  Story’s  Const.  § 1870-1879;  People  v.  Ruggles,  Object. 

8 Johns.  160  ; Yidal  v.  Girard’s  Executors,  2 How.  127. 

This,  and  the  clause  in  the  YIth  Article,  that  “ no  religious  test 
shall  ever  be  required  for  office,”  are  the  only  provisions  in  the 
federal  Constitution  upon  the  subject.  Ex  parte  Garland,  4 Wal- 
lace, 397. 

No  restraint  is  placed  on  the  action  of  the  States ; but  the  whole  Is  the  re- 
power over  the  subject  of  religion  is  left  exclusively  to  the  State  straint  upon 
governments.  (Story’s  Const.  § 1878.)  Ex  parte  Garland,  Id.  0f  the  l°Q 

This  makes  no  provision  for  protecting  the  citizens  of  the  respec-  §43245 
tive  States  in  their  religious  liberties ; that  is  left  to  the  State  con- 
stitutions ; nor  is  there  any  inhibition  imposed  by  the  Constitution 
of  the  United  States  in  this  respect  on  the  States.  (Permoli  v.  First 
Municipality,  3 How.  589,  609;  Ex  parte  Garland,  4 Wall.  399. 

This  court  now  holds  the  provision  in  the  Constitution  of  Mis-  U* 
souri  void,  on  the  ground  that  the  federal  Constitution  forbids  it. 

(Such  as  a test  oath  to  priests.)  Ex  parte  Garland,  4 Wallace,  3 9 8. 142, 143. 

See  the  subject  fully  discussed  in  1 Kent’s  Com.  11th  edition,  Part 
IY.  sec.  XXIY.  p.  633;  Story’s  Const.  § 1870-1879;  Andrew  v. 

The  Bible,  &c.,  Society,  4 Sandf.  N.  Y.  156;  Ayers  v.  M.  E.  Church, 

3 Id.  351. 

Christianity  is  not  a part  of  the  municipal  law.  Andrew  v.  N.  Y.  Is  Christi- 
& P.  B.  Society,  4 Sandf.  N.  Y.  R.  182.  With  us,  all  religions  are  Part 
tolerated,  and  none  is  established ; each  has  an  equal  right  to  the  common 
protection  of  the  law.  Ayers  v.  The  Methodist  Church,  3 Sandf.  377.  law  ? 

It  must  be  understood  to  extend  equally  to  all  sects,  whether  they  What  is  the 
believed  in  Christianity  or  not,  and  whether  they  were-  Jews  or  In-  extent  of 
fidels.  (Updegraff  v.  The  Commonwealth,  11  Sergt.  & Rawle,  394.)  era" 
Yidal  v.  Girard’s  Executors,  2 How.  198. 

This  declaration  (to  the  same  effect  in  the  Constitution  of  the  re-  what  is  the 
public  of  Texas)  reduced  the  Roman  Catholic  Church  from  the  high  revolution- 
privilege  of  being  the  only  national  church,  to  a level  and  an  equal-  Sh  deela^ 
lty  with  every  other  denomination  of  Christians.  Blair  v.  Odin,  3 ration*  ? 
Tex.  300;  Wheeler  v.  Moody,  9 Tex.  376.  After  this  fundamental 
change,  assessments  and  contributions  could  not  be  levied  for  the 
purpose  of  creating  such  edifices  and  supporting  ecclesiastics,  on 
the  ground  that  the  previous  system  had  destined  such  contribu- 
tions. (Antoines  v.  Esclava,  9 Porter,  527 ; Terrett  v.  Taylor,  9 
Cr.  43.)  Paschal’s  Annotated  Digest,  note  154;  Blair  v.  Odin,  3 
Tex.  300. 

So  far  as  they  (the  acts  of  Congress  organizing  the  territories)  229,  231. 
conferred  political  rights,  and  secured  civil  and  religious  liberties 
(which  are  political  rights),  the  laws  of  Congress  were  all  super- 
seded by  the  State  Constitution ; nor  are  any  part  of  them  in  force, 
unless  they  were  adopted  by  the  Constitution  of  Louisiana,  as  laws 
of  the  State.  Permoli  v.  First  Municipality,  3 How.  610. 

246.  “Freedom  of  Speech”  [from  freo , free,  and  dom,  juris-  What  is 
diction]. — Liberty;  exemption  from  servitude.  Syn.  Freedom  freedom? 
and  liberty,  as  applied  to  nations,  are  often  used  synonymously.  482. 
Freedom  is  personal  and  private;  liberty  public.  Worcester’s  Die., 

Freedom. 


256 


akms,  247-250. 


[Amendments, 


Define 
“freedom  of 
the  press  ”? 

48a 


6, 16,  251. 


Define  the 
“ right  to 
petition”? 


What  is  the 
right  to 
bear 
arms? 


249,  130, 175, 
238,  240. 

484. 


What  is  a 
soldier  ? 


247.  “And  op  the  Press.” — This  language  imports  no  more 
than  that  every  man  shall  have  a right  to  speak,  write,  and  publish 
his  opinions  upon  any  subject  whatsoever,  without  any  prior  re- 
straint, so,  always,  that  he  does  not  injure  any  person  in  his  rights, 
person,  or  reputation ; and  so  always  that  lie  does  not  thereby  dis- 
turb nor  attempt  to  subvert  the  government.  (Rawle’s  Const,  ch.  10, 
pp.  123,  124;  2 Kent’s  Com.  Lect.  24,  pp.  16-26;  De  Lolme,  B.  2, 
ch.  12,  13;  2 Lloyd’s  Debates,  1 97,  198.)  Story’s  Const.  § 1880- 
1885;  Paschal’s  Annotated  Digest,  note  161,  p.  47 ; 1 Black.  Com. 
152,  153;  Rex  v.  Burdett,  4 Barn  & Aid.  95;  De  Lolme,  B.  2,  ch. 
12,  291-297. 

248.  “The  People  ” here  is  used  in  the  broad  sense  of  the  pre- 
amble ; and  a broader  sense  than  u electors.”  It  was  never  un- 
derstood to  apply  to  slaves. 

“Right  to  Petition.” — This  right  is  incident  to  a republican 
government.  Story’s  Const.  § 1994,  1995.  The  only  question  is 
as  to  the  “ grievances  ” to  be  redressed.  That  must  always  be 
determined  by  the  power  of  the  u government  ” to  give  the  redress 
asked.  See  the  discussions  on  the  21st  rule  of  the  House  of  Rep- 
resentatives in  1838,  and  the  debates  thereon  until  1846. 

It  is  to  be  observed  that  the  right  is  to  petition  the  “ govern- 
ment.” This  must  mean  to  address  the  petition  to  the  appropriate 
department:  to  Congress,  the  executive,  or  the  judiciary,  accord- 
ing to  their  respective  jurisdictions,  as  prescribed  by  tbe  Constitu- 
tion and  laws.  The  questions  of  jurisdiction  and  of  right  must 
always  determine  whether  the  redress  sought  can  be  granted. 

Article  II. 

A well-regulated  militia  being  necessary  to  the  se- 
curity of  a free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. 

240.  This  clause  has  reference  to  a free  government,  and  is 
based  on  the  idea,  that  the  people  cannot  be  oppressed  or  enslaved, 
who  are  not  first  disarmed.  Cockrum  v.  The  State,  24  Tex.  401. 

See  Tucker’s  Black.  Com.  upon  the  Militia,  App.  300 ; Black. 
Com.  143,  144;  Rawle’s  Const,  ch.  10,  pp.  126,  127  ; 2 Lloyd’s  De- 
bates, 23. 

The  President,  by  order,  disbanded  the  volunteer  companies  of 
the  District  of  Columbia,  in  November,  1867.  His  right  to  do  so 
has  been  denied. 


Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner  ; nor  in 
time  of  war,  but  in  a manner  to  be  prescribed  by  law. 

250.  “ No  Soldier.” — Soldier,  a man  engaged  in  military 
service ; one  whose  occupation  is  military ; a man  enlisted  for 


Arts.  II.-1V.]  SECURITY,  251,  252.  257 

service  in  an  army;  a private  or  one  in  the  ranks.  Webster’s  Definition. 
Die.,  Soldier. 

“Shall  be  Quartered  in  any  House.” — To  Quarter  is  to 
station  soldiers  for  lodging.  Webster’s  Die.,  Quarter. 

The  object  is  to  secure  the  perfect  enjoyment  of  that  great  right 
of  the  common  law,  that  a man’s  house  shall  be  his  own  castle, 
privileged  against  all  civil  and  military  intrusion.  Story’s  Const. 

§ 1900. 

“ The  Owner  ” here  means  the  occupant  in  possession. 

Article  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  Warrants? 
houses,  papers,  and  effects,  .against  unreasonable 
searches  and  seizures,  shall  not  be  violated  ; and  no 
warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

251.  “ The  People  ” is  here  used  in  as  comprehensive  a sense  Who  are  the 
as  in  the  preamble,  and  perhaps  in  a more  enlarged  sense  than  PeoPle  ? 
there  or  elsewhere.  It  embraces  all  the  inhabitants — citizens  and 

aliens — who  are  entitled  to  the  protection  of  the  law.  The  slaves  6, 16,  93,  220, 
were  never  treated  as  a part  of  this  “ people.”  The  provision  22L  248>  25S* 
is  indispensable  to  the  full  enjoyment  of  the  rights  of  personal 
security,  personal  liberty,  and  private  property.  Story’s  Const. 

§ 1902. 

“Searches  and  Seizures,”  are  always  unreasonable  when  they  when  un- 
are  without  authority  of  law.  It  was  intended  to  prevent  domi-  reasonable? 
ciliary  visits  and  arbitrary  arrests,  which  are  the  natural  fruits  of 
unrestricted  power. 

252.  “ And  no  Warrant,”  &c. — [0.  Fr.  guarent;  Lomb.  warens.']  what  is  a 
- — An  authority  to  do  some  judicial  act;  a power  derived  from  warrant  ? 
a court,  to  take  some  person  or  property.  Burrill’s  Law  Die., 

Warrant. 

This  refers  only  to  process  issued  under  authority  of  the  United  To  what 
States.  Smith  v.  Maryland,  18  How.  71.  And  it  has  no  applica-  confined? 
tion  to  proceedings  for  the  recovery  of  debts,  as  a treasury  distress  257. 
warrant.  Murray’s  Lessee  v.  Hoboken  Land  & Improvement  Co. 

Id.  272.  See  Ex  parte  Burford,  3 Cr.  448;  Wakely  v.  Hart,  6 
Binn.  316;  1 Opin.  229  ; 2 Id.  266.  See  Ex  parte  Milligan,  4 Wall. 

119.  It  was  caused  by  the  practice  of  issuing  general  warrants. 

Story’s  Const.  § 1902.  See  Moody  v.  Beach,  3 Bflrr.  1743;  4 
Black.  Com.  291,  292  ; 15  Hansard’s  Parliamentary  History,  1398- 
1419  (1764);  Bell  v.  Clapp,  10  Johns.  263;  Sailley  v.  Smith,  11 
Johns.  500  ; Report  and  Resolutions  of  the  Virginia  Legislature, 

25th  Feb.  1799;  4 Jefferson’s  Correspondence,  justifying  arrests 
by  Wilkinson,  75-136;  Story’s  Const.  § 1902,  note  2. 


W8 


What  is 
necessary  to 
charge  a 
capital  or 
infamous 
crime  ? 


What  of  the 
rights  of 
property  ? 

485-489. 


What  is  a 
“ person”  ? 
19,  35, 159. 

"V\  hat  is  a 
capital  or 
infamous 
crime  ? 

40,  99,  HO- 
116, 142,  191- 
194. 


What  is  a 
present- 
ment ? 

252,  260. 


What  is  an 
indictment? 
252,  2 GO. 


What  is  a 
grand 
Jury  ? 


INDICTMENT,  253.  [Amendments, 

Article  V. 

No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  or 
indictment  of  a grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  when  in 
actual  service,  in  time  of  war  or  public  danger ; nor 
shall  any  person  be  subject  for  the  same  offense  to  be 
twice  put  in  jeopardy  of  life  or  limb  ; nor  shall  be  com- 
pelled, in  any  criminal  case,  to  be  witness  against  him- 
self; nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law  ; nor  shall  private  property 
be  taken  for  public  use  without  just  compensation. 

253.  Person. — Practically  the  slaves  and  people  of  color  were 
never  considered  as  embraced  in  this  amendment,  as  they  were 
often  proceeded  against  without  indictment.  It  meant  a free 
white. 

“Capital  or  otherwise  Infamous  Crime.” — This  must  mean 
treason,  piracy,  or  felony  (“  high  crime  ”),  as  contradistinguished 
from  “misdemeanor.”  Story’s  Const.  § 1784. 

In  England,  it  formerly  incapacitated  the  party  committing  it 
from  giving  evidence  as  a witness ; such  as  treason,  praemunire , 
felony,  and  every  species  of  crimen  falsi , as  perjury,  forgery,  and 
the  like.  Roscoe’s  Criminal  Evidence,  135.  Usually,  in  this  coun- 
try, it  means  such  as  are  punished  with  death,  or  imprisonment  in 
a State  prison  or  penitentiary.  Id. 

But  the  “ presentment  OR  indictment  ” is  used  in  all  offenses 
against  the  United  States.  “ Presentment ” is  the  notice  taken  by 
a grand  jury  of  any  offense,  from  their  own  knowledge  or  obser- 
vation, without  any  bill  of  indictment  laid  before  them,  upon  which 
the  officer  of  the  court  must  afterward  frame  an  indictment,  be- 
fore the  party  presented  can  be  put  to  answer  for  it.  4 Black. 
Com.  301. 

Presentment  (information)  is  not  synonymous  with  “indictment.” 
An  indictment  must  be  found  by  a grand  jury;  an  information 
may  be  preferred  by  an  officer  of  court.  Clepper  v.  The  State,  4 
Tex.  244;  Paschal’s  Annotated  Digest,'  notes  162,  163,  p.  48.  It 
has  never  yet  been  authorized  by  act  of  Congress.  Story’s  Const. 
§ 1785. 

An  “indictment”  is  a written  accusation  of  one  or  more  per- 
sons of  a crime  or  misdemeanor,  preferred  to  and  presented  on 
oath  by  a gjand  jury.  (4  Bl.  Com.  302;  4 Stephens’  Com.  69; 
Arch.  Cr.  PI.  1.)  Burrill’s  Law  Die.,  Indictment.  See  Paschal’s 
Annotated  Digest,  Art.  2863,  notes  720-721. 

A “grand  jury”  is  a body  of  men  varying  from  not  less  than 
twelve  to  not  more  than  twenty-three,  who,  in  secret,  hear  the  evi- 
dence offered  by  the  government  only,  and  find  or  ignore  bills  of  in- 


Art.  V.] 


TWICE  IN’  JEOPARDY,  254-256. 


259 


dictment  presented  to  them.  (4  Bl.  Com.  302,  303 : 4 Stephens-  260. 
Com.  369,  370.)  Burrill’s  Law  Die.,  Grand  Jury;  Story’s  Const. 

§ 1784;  The  King  v.  Marsh,  6 Adolph.  & Ell.,  236;  1 Nev.  & 

Perry,  187;  People  v.  King,  2 Caines’  Cases,  98;  Commonwealth 
v.  Wood,  2 Cush.  149.  The  subject  of  grand  juries  is  regulated 
by  Act  of  Congress.  9 St.  72;  4 St.  188;  1 Brightly’s  Dig.  223, 

232. 

254.  “Except  in  cases  arising-  in  the  land  or  naval  What  is  the 

FORCES,  OR  THE  MILITIA  WHEN  IN  ACTUAL  SERVICE  IN  TIME  OF  ®^eption  ? 

war  OR  public  danger.” — This  article,  compared  with  the  eighth  ^ ' 

section  of  the  first  article,  “to  provide  and  maintain  a navy;”  “to1  * 
make  rules  for  the  government  of  the  land  and  naval  forces.” 

Under  these  provisions  Congress  has  the  power  to  provide  for  the 
trial  and  punishment  of  military  and  naval  offenses  in  the  manner  What  is  the 
then  and  now  practiced  by  civilized  nations  ; and  the  power  to  do  jurisdiction 
so  is  given  without  any  connection  between  it  and  the  third  article  trial  ? J 
of  the  Constitution  defining  the  judicial  power  of  the  United  States. 

Indeed,  the  two  powers  are  entirely  independent  of  each  other. 

Dynes  v.  Hoover,  20  How.  78. 

And  if  the  sentence  be  confirmed,  it  becomes  final,  and  must  be 
executed,  unless  the  President  pardon  the  offenders.  When  con- 
firmed, it  is  beyond  the  jurisdiction  of  any  civil  tribunal  whatever, 
unless  it  should  be  in  a case  where  the  court  had  not  jurisdiction 
over  the  subject-matter  of  the  charge.  Dynes  v.  Hoover,  20  How. 

81 ; 3 Whiting,  335. 

If  the  court-martial  had  no  jurisdiction,  or  should  inflict  a punish-  Suppose  the 
ment  forbidden  by  the  law,  although  the  sentence  be  approved, 
civil  courts  may,  on  an  action  by  a party  aggrieved,  inquire  into  ^ ^uri8qic 
the  want  of  jurisdiction  and  give  redress.  (Harman  v.  Tuppenden,  tion? 

1 East,  555;  Marshall’s  Case,  10  Cr.  76;  Morrison  v.  Sloper,  Willes, 

30 ; Parton  v.  Williams,  B.  & A.  330.)  Dynes  v.  Hoover,  20 
How.  82  ; S.  C.  3 Whiting,  336. 

255.  “For  the  same  offense  to  be  put  twice  in  jeopardy  what 

OF  life  or  limb.” — The  meaning  of  this  phrase  is,  that  a party  ,me;ans.  - 
shall  not  be  tried  a second  time  for  the  same  offense,  after  he  has  ? 

once  been  acquitted  or  convicted,  unless  the  judgment  has  been1  1 260. 
arrested  or  a new  trial  granted  on  motion  of  the  party.  But  it 

does  not  relate  to  a mis-trial.  (United  States  v.  Haskell,  4 Wash.  486. 

C.  C.  402,  410.)  United  States  v.  Perez,  9 Wheat,  579.  The  court 
may  discharge  a jury  from  giving  a verdict,  in  a capital  case,  with- 
out the  consent  of  the  prisoner,  whenever,  in  their  opinion,  there 
is  a manifest  necessity  for  such  an  act,  or  the  ends  of  justice  would 
be  otherwise  defeated.  United  States  v.  Perez,  9 Wh.  579.  See 
United  States  v.  Haskell,  4 Wash.  C.  C.  402 ; United  States  v.  Gilbert, 

2 Sumn.  19  ; Story’s  Const.  § 1787.  See  the  cases  fully  collected 
and  the  distinctions  nicely  stated  in  2 Graham  & Waterman  on 
New  Trials,  ch.  2,  pp.  51-135.  Paschal’s  Annotated  Digest,  note 
113. 

250.  “ Witness  against  himself.” — To  make  a man  a witness  Why  not 
against  himself  would  be  contrary  to  the  principles  of  a republi-  a0w-itnf?| 
can  government.  Wynehamer  v.  The  People,  13  N.  Y.  391,  392.  »finS  m" 


260 


DUE  PROCESS  OF  LAW,  257.  [Amendments, 


Is  the 
inhibition 
confined  to 
criminal 
cases  ? 

233. 

What  is  due 
process  of 
law  ? 

260. 

487, 488. 

Repeat 
Magna 
Charta  ? 

251. 


What  is  due 
eourse  of 
law? 

260. 


Define  the 
right  of  a 
citizen  ? 

253. 


What  is 
law? 

239. 


Does  the 
rule  apply 
to  the  collec- 
tion of 
revenue  ? 


This  must  have  reference  to  criminal  proceedings,  since  the  prac- 
tice of  discovery  in  civil  cases  is  universal.  See  4 Bl.  Com.  326  ; 3 
Wilson’s  Law  Lect.  154-159;  Cicero  pro  Sulla,  28.  Rutherford’s 
Inst.  B.  1,  ch.  18,  § 5.  Such  a practice  in  criminal  cases  is  con- 
ceived in  a spirit  of  torture.  Story’s  Const.  § 1788. 

257.  “Without  due  process  of  Law.” — By  the  “due  course 
of  law,”  is  meant  all  the  guaranties  set  forth  in  the  sixth  amend- 
ment. Jones  v.  Montes,  15  Tex.  353  ; Janes  v.  Reynolds,  2 Tex. 
251.  In  Magna  Charta  it  probably  meant  the  established  law  of 
the  kingdom,  in  opposition  to  the  Civil  or  Roman  law.  James  v. 
Reynolds,  2 Tex.  251 ; Paschal’s  Annotated  Digest,  note  155. 

Nec  super  eum  ibimus,  nec  super  eum  mittimus , nisi  per  legale  judi- 
cium parium  suorum , vel  per  legem  terrce.  Neither  will  we  pass 
upon  him.  or  condemn  him,  but  by  the  lawful  judgment  of  his  peers 
or  the  law  of  the  land.  Magna  Charta;  Story’s  Const.  § 1789. 
See  the  question  examined.  Murray’s  Lessee  v.  Hoboken  Land 
& Improvement  Company,  18  How.  272. 

It  conveys  the  same  meaning  as  “law  of  the  land,”  in  Magna 
Charta.  (2  Inst.  50.)  Id.  276. 

“ Due  Process  of  Law.” — This  means  that  the  right  of  the 
citizen  to  his  property,  as  well  as  life  or  liberty,  could  be  takeD 
away  only  upon  an  open,  public,  and  fair  trial  before  a judicial 
tribunal,  according  to  the  forms  prescribed  by  the  laws  of  the  land 
for  the  investigation  of  such  subjects.  9th  Op.  200.  An  execu- 
tive officer  cannot  make  an  order  to  violate  this  principle.  Id. 
Property  and  life  are  put  upon  the  same  footing.  Id. 

The  true  interpretation  of  these  constitutional  phrases  is,  that 
where  rights  are  acquired  by  the  citizen  under  the  existing  law, 
there  is  no  power  in  any  branch  of  the  government  to  take  them 
away ; but  where  they  are  held  contrary  to  existing  law,  or  are 
forfeited  by  its  violation,  then  they  may  be  taken  from  him — not 
by  an  act  of  the  legislature,  but  in  the  due  administration  of  the 
law  itself,  before  the  judicial  tribunals  of  the  State.  Wynehamer 
v.  People,  13  N.  Y.  R.  393  ; Taylor  v.  Porter,  4 Hill,  145.  That 
is  by  indictment  or  presentment  of  good  and  lawful  men.  (2 
Kent’s  Com.  13;  Story’s  Const.  § 1782;  2 Coke’s  Inst.  45-50.) 
Wynehamer  v.  People,  13  N.  Y.  R.  395;  Jones  v.  Montes,  15 
Tex.  352;  Paschal’s  Annotated  Digest,  note  155;  2 Inst.  50,  51; 
2 Kent’s  Com.  Lect.  24,  p.  10;  Story’s  Const.  § 1789. 

What  law  ? Undoubtedly  a pre-existing  rule  of  conduct,  not  an 
ex  post  facto  law,  rescript,  or  decree  made  for  the  occasion — the 
purpose  of  working  the  wrong.  (Norman  v.  Heist,  5 Watts  & 
Sergt.  193;  Taylor  v.  Porter,  4 Hill,  145;  Hofce  v.  Henderson,  4 
Dev.  15.)  Wynehamer  v.  People,  13  N.  Y.  R.  393,  394.  See  full 
citations,  2 Kent’s  Com.  11th  ed.  339,  240,  and  notes. 

This  is  intended  to  secure  the  citizen  the  right  to  a trial,  accord- 
ing to  the  forms  of  law.  Parsons  v.  Russel,  11  Mich.  113.  But 
it  does  not  apply  to  proceedings  to  collect  the  public  revenue. 
Ames  v.  Port  Huron,  &c.,  Co.  11  Mich.  139.  See  that  question  ex- 
haustively investigated.  Taylor’s  Lessee  v.  Hoboken  Land  & 
Improvement  Company,  18  How.  272. 

Por  though  “ due  process  of  law  ” generally  implies  and  includes 


Art.  V.]  PKIV.  PROP.  FOR  PUB.  USE,  257,  258. 


261 


actor,  reus,  judex , regular  allegations,  opportunity  to  answer,  and  a 488. 
trial  according  to  some  settled  course  of  judicial  proceeding,  yet 
this  is  not  universally  true.  (2  Inst.  47,  50  ; Hoke  v.  Henderson, 

4 Dev.  N.  C.  R.  15;  Taylor  v.  Porter,  4 Hill,  146  ; Yan  Zandt  v. 

Waddel,  2 Yerg.  260;  State  Bank  v.  Cooper;  Id.  599;  Jones  v. 

Heirs  of  Perry,  10  Id.  59 ; G-reene  v.  Briggs,  1 Curtis,  311.)  Mur- 
ray v.  Hoboken  L.  & I.  Co.,  18  How.  280. 

The  article  is  a restraint  on  the  legislative  as  well  as  on  the  Does  the 
executive  and  judicial  branches  of  the  government,  and  cannot  be  ^ain^iie 
so  construed  as  to  leave  Congress  free  to  make  any  process  “ due  legislature  ? 
process  of  law.”  Id.  276.  We  must  examine  the  Constitution 
itself,  to  see  whether  the  process  be  in  conflict  with  any  of  its  pro- 
visions. Id.  277.  Summary  process  to  collect  revenue  was  always 
allowed.  Id.  Authorities  exhausted.  Id. 

The  law  of  New  York,  which  authorizes  a person  to  be  commit-  Exemplify  a 
ted  as  an  inebriate  to  the  lunatic  asylum  upon  an  ex  parte  affidavit,  vu>lation^of 
without  being  heard,  violates  this  guaranty.  In  matter  of  Jones,  30  1 18  c ause 
How.  Pr.  446. 

258.  “ Private  Property  for  public  use  without  just  What  is 
Compensation. — “Private  Property ” is  the  sacred  right  of  indi-  private  ^ 
vidual  dominion.  It  is  one  of  the  great  absolute  rights  of  every  prope  y 
citizen  to  have  his  property  protected.  And  the  government  has  231,  233, 144, 
no  right  to  deprive  the  citizen  of  his  property,  except  for  the 
use  of  the  public ; nor  then,  without  compensation.  Story’s  Const 
§ 1790. 

This  phrase  includes  all  private  property.  United  States  v.  489. 
Harding,  1 Wall.  Jr.  127  ; 2 Opin.  655.  See  Murray’s  Lessee  v. 

Hoboken  Land  & Improvement  Company,  18  How.  276.  This  last 
clause  refers  solely  to  the  exercise  by  the  State  of  the  right  of 
eminent  domain.  (The  People  v.  The  Mayor  of  Brooklyn,  4 Comst. 

419.)  Gilman  v.  The  City  of  Sheboygan,  2 Blackf.  513.  This  pro- 
vision is  only  a limitation  of  the  power  of  the  general  government; 
it  has  no  application  to  the  legislation  of  the  several  States.  Bar- 
ron v.  Mayor  of  Baltimore,  7 Pet.  243-7  ; Bonaparte  v.  Camden  & 

Amboy  R.  R.  Co.,  Bald.  220.  It  is  now  settled  that  the  amend- 
ments to  the  Constitution  do  not  extend  to  the  States.  Livingston’s 
Lessee  v.  Moore,  7 Pet.  551  ; Boring  v.  Williams,  17  Ala.  516. 

They  are  exclusively  restrictions  upon  federal  power,  intended  to 
prevent  interference  with  the  rights  of  the  States,  and  of  their 
citizens.  Pox  v.  Ohio,  5 How.  434;  James  v.  Commonwealth,  12 
S.  & R.  221 ; Barker  v.  The  People,  3 Cow.  686.  It  is  a great 
principle  of  the  common  law,  which  existed  anterior  to  the  Consti- 
tution and  to  magna  charta,  and  which  was  embodied  in  the  29th  What  says 
article  of  that  great  charter  : — “ No  freeman  shall  be  taken,  or  im-  Magna 
prisoned,  or  disseized  of  his  freehold,  or  liberties,  or  otherwise  Ctiarta? 
destroyed,  but  by  lawful  judgment  of  his  peers,  or  by  the  law  of 
the  land.”  Young  v.  McKenzie,  3 Ga.  42.  This  is  an  affirmance 
of  a great  doctrine  established  by  the  common  law  for  the  protec- 
tion of  private  property.  It  is  founded  on  natural  equity,  and  laid 
down  by  jurists  as  a principle  of  universal  law.  (Story’s  Const. 

§ 1790;  Bradshaw  v.  Rogers,  2 Johns.  106;  Louisville,  Cincinnati 
& Charleston  Railroad  Co.  v.  Chappell,  Rice,  387  ; Doe  v.  The 


262 


JUST  COMPENSATION,  258,  259.  [Amendm’ts, 


Authorities. 


What  i 3 just 
compensa- 
tion? 


In  what 
must  be 
the  pay- 
ment? 


What  pro- 
vision for 
payment 
must  be 
made  ? 


For  what 
purpose  can- 
not a rail- 
road con- 
demn ? 


GeorgiaR.il.  & B.  Co.,  1 Kelley,  524;  1 Bl.  Com.  139,  140.)  Young 
v.  McKenzie,  3 Ga.  40-44;  2 Kent’s  Com.  Lect.  24,  pp.  275,  276; 

3 Wilson’s  Law  Lect.  203;  Ware  v.  Hylton,  3 Dali.  194,  235.  In 
the  absence  of  any  such  declaration  in  the  Constitution  of  Georgia, 
we  refer  to  this  amendment  as  a plain,  simple  declaration  of  a great 
constitutional  principle,  of  universal  application,  as  asserted  and 
declared  in  the  Constitution  of  the  United  States.  Young  v.  Mc- 
Kenzie, 3 Ga.  45.  The  true  principle  from  this  case  would  seem 
to  be,  that  the  Constitution  of  the  United  States,  and  the  amend- 
ments, enter  into  and  form  parts  of  the  State  Constitutions — para- 
mount pro  tanto. — Ed.  Some  of  these  amendments  were  declara- 
tory; some  restrictive  of  the  powers  of  the  federal  government. 
The  latter  clause  of  this  article  is  only  declaratory.  Young 
v.  McKenzie,  3 Ga.  44. 

A “ public  use  ” means  a use  concerning  the  whole  community, 
as  distinguished  from  particular  individuals,  though  each  and  every 
member  of  society  need  not  be  equally  interested  in  such  use. 
Gilmer  v.  Line  Point,  18  Cal.  229.  And  see  Honey  man  v.  Blake, 
19  Cal.  579.  See  People  v.  Kerr,  3 Barb.  N.  Y.  357.  The  right 
of  the  owners  of  town  lots  to  the  adjoining  street,  is  as  much 
property  as  the  lot  itself.  Lackland  v.  North  Missouri  R.  R.  Co. 
31  Mo.  180. 

259.  “Just  Compensation.” — Although  we  may  hold  that 
“compensation”  is  not  altogether  synonymous  with  “payment,” 
yet  the  means  of  payment  must  not  be  doubtful.  The  making  of 
compensation  must  be  as  absolutely  certain  as  that  the  property  is 
taken.  (Carr  v.  Ga.  R.  R.  & B.  Co.,  1 Kelley,  524;  Young  v. 
Harrison,  6 Ga.  130 ; Bloodgood  v.  M & H.  R.  R.  Co.,  18  Wend. 
9;  2 Kent’s  Com.  339.)  B.  B.,  Brazos  & Colorado  Railroad  Co.  v. 
Perris,  26  Tex.  602.  (See  2 Kent’s  Com.  3d  ed.  notes  f,  and  7 ; 
Miller  v.  Craig,  3 Stockt.  N.  J.  106.) 

The  payment  must  be  in  money,  the  constitutional  currency.  Id. 
The  advantages  to  the  land  not  taken  cannot  be  estimated  against 
the  intrinsic  value  of  the  land  actually  taken.  (Jacob  v.  The  City 
of  Louisville,  9 Dana,  114;  The  People  v.  The  Mayor  of  Brooklyn, 
6 Barb.  309 ; Rogers  v.  R.  R.  Co.  3 Maine,  310 ; State  v.  Miller,  3 
Zab.  383;  Hatch  v.  R.  R.  25  Yt.  49;  Moale  v.  Baltimore,  5 Md. 
314.)  B.  B.,  Brazos  &Colo.  R.  R.  Co.  v.  Ferris,  26  Tex.  603,  604; 
Paschal’s  Annotated  Dig.  note  168. 

Under  an  act  which  authorizes  a work,  but  does  not  provide  for 
compensation  for  private  property,  which  it  will  be  necessary  to 
take,  such  property  cannot  be  taken  without  the  owner’s  consent. 
Carson  v.  Coleman,  3 Stockt.  N.  J.  106.  The  consequential  injury 
occasioned  by  the  grading  of  a street,  is  not  a taking  of  private 
property  for  public  use  within  the  meaning  of  the  prohibition  of  the 
Constitution.  Macy  v.  Indianapolis,  17  Ind.  267. 

The  question  is  not  judicial,  but  one  of  political  sovereignty,  to 
be  exerted  as  the  legislature  directs.  Ford  v.  Chicago,  &c.,  R.  R. 
Co.  14  Wis.  609. 

A railroad  company  cannot  condemn  a site  for  erecting  a manu- 
factory of  railroad  cars.  Eldridge  v.  Smith,  34  Vermont  (5  Shaw), 
484.  Nor  dwelling-houses  for  employees.  Id.  Otherwise  as  to 


A <"ts.  V,,  YI.]  JUST  COMPENSATION,  259. 


268 


wood  and  lumber  used  on  the  road.  Id.  There  must  be  a con-  489. 
demnation,  or  an  agreement  consummated.  Id.  ; Whitman  v. 

Boston,  &c.,  3 Allen  (Mass.),  133.  The  condemnation  may  be  within 
the  liberal  construction  of  the  charter.  Fall  River,  &c.,  Co.  v.  Old 
Colony,  &c.,  R.  R.  Co.  5 Allen  (Mass.),  221.  And  see  Wadhams  v. 

Lackawana,  &c.,  R.  R.  Co.,  42  Penn.  State  R.  303 ; Yicksburg,  &c., 

R.  R.  Co.,  15  La.  Ann.  507. 

The  actual  occupant  of  vacant  public  lands  is  entitled  to  damages,  To  waat 
even  where  the  land  is  taken  under  an  act  of  Congress.  California,  htle  does  it 
&c.,  R.  R.  Co.  v.  Gould,  21  Cal.  254.  A statute  fixing  the  minimum  exten  ? 
of  fees  for  defending  criminals  is  not  taking  private  property  for 
. public  use.  Samuels  v.  Dubuque,  13  Iowa  (5  With.),  536. 

The  law  of  New  York,  which  forbade  the  sale  of  spirituous  state  the 
liquors,  “ deprived ” the  owners  of  their  property;  and  violated  this  principle 
guaranty.  Wynehamer  v.  The  People,  13  N.  Y.  R.  395,  396,  397.  Sfquor  laws? 
When  a law  annihilates  the  value  of  property,  and  strips  it  of  its 
attributes,  by  which,  alone,  it  is  distinguished  as  property,  .the 
owner  is  deprived  of  it  according  to  the  plainest  interpretation,  and 
certainly  within  the  spirit  of  the  constitutional  provision  intended 
expressly  to  shield  private  rights  from  the  exercise  of  power. 
Wynehamer  v:  People,  13  N.  Y.  R.  398.  These  views  do  not  in- 
terfere with  the  license  laws,  which  have  been  held  to  be  constitu- 
tional ; nor  with  the  laws  which  merely  affect  the  value  of  property, 
or  render  its  destruction  necessary  as  a means  of  safety.  (Story’s 
Const.  § 1790;  Radcliff’s  Executors  v.  The  Mayor  of  Brooklyn, 

4 Comst.  195;  2 Kent,  330;  Russel  v.  The  Mayor,  &c.,  of  New 
York,  2 Denio,  461.)  Wynehamer  v.  The  People,  13  N.  Y.  R.  402 ; 

Mitchell  v.  Harmony,  13  How.  115;  The  License  Cases,  5 Howard, 

504;  Lorocco  v.  Geary,  3 Cal.  69;  Am,  Print  Works  v.  Lawrence, 

1 Zabr.  248. 

A law  prohibiting  the  indiscriminate  traffic  in  intoxicating  what  con- 
liquors,  and  placing  the  trade  under  public  regulation  to  prevent  trol  has  the 
abuse  in  their  sale  and  use,  violates  no  constitutional  restraints. 

It  deprives  no  one  of  his  liberty  or  property.  Metropolitan  Board  liquor 
of  Excise  v.  Barrie,  34  N.  Y.  R.  667.  trade? 

No  one  legislature  can  curtail  the  power  of  its  successors  to  Can  a 
make  such  laws  as  they  may  deem  proper  in  matters  of  police,  legislature 
(Alger  v.  Weston,  14  Johns.  231;  People  v.  Morris,  13  Wend.  329;  successors? 
State  v.  Holmes,  38  New  Hamp.  225 : Calder  v.  Kirby,  5 Gray, 

597;  Hun  v.  The  State,  1 Ohio,  15;  Wynehamer  v.  The  People, 

3 Kern.  (13  N.  Y.  R.)  378;  License  Cases,  5 How.  504;  Butler  v. 
Pennsylvania,  10  How.  416;  Coates  v.  The  Mayor,  7 Cow.  587; 

2 Parsons  on  Cont.  538;  3 Id.  5th  ed.  556.)  Metropolitan  Board  v. 

Barrie,  34  N.  Y.  R.  668.  Some  of  the  dicta  in  Wynehamer  v.  The 
People  have  misled.  Id. 

Article  YI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  what  are 
the  right  to  a speedy  and  public  trial,  by  an  impartial  defendants^ 
jury  of  the  State  and  district  wherein  the  crime  shall  case™1™1 
have  been  committed,  which  district  shall  have  been  16, 35, 46. 


264 


CRIMINAL  PROSECUTIONS,  260.  [Amendments, 


490,  491. 


253,  263. 

12,  212,  245. 


263. 


212,  251-259. 


What  is  the 
Constitution 
of  the  Uni- 
ted States  ? 
2,  8, 117. 

What  is  the 
power  of  a 
military 
commis- 
sion ? 

To  whom  is 
jury  trial 
secured  ? 

254. 

253,  254. 


What  are 
the  excep- 
tions ? 

254. 

How  are 
the  citizens 
to  be  tried  ? 
What  of 
martial 
law  ? 

140,  141. 


previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation  ; to  be  confront- 
ed with  the  witnesses  against  him  ; to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor;  and  to 
have  the  assistance  of  counsel  for  his  defense. 

260.  “The  accused,”  here  means  the  “person”  presented 
or  indicted.  The  “ him  ” does  not  limit  the  accused  to  sex.  Be- 
cause the  amendments  did  not  apply  to  the  States,  the  slaves  and 
free  persons  of  color  were  often  deprived  of  a trial  by  jury. 

This  is  only  to  be  intended  of  those  crimes  which,  by  our  former 
laws  and  customs,  had  been  tried  by  jury.  United  States  v.  Duane, 
(Penn.)  Wall.  106.  The  conspirators  who  assassinated  the  Presi- 
dent of  the  United  States,  while  the  country  was  in  a state  of 
war,  and  while  the  city  of  Washington  was  under  martial  law, 
were  triable  by  military  commission  under  the  act  of  Congress,  and 
not  entitled  to  a trial  by  jury.  The  Trial  of  the  Conspirators.  Any 
person  charged  with  a crime  in  the  courts  of  the  United  States, 
has  a right,  before  as  well  as  after  indictment,  to  the  process  of  the 
court  to  compel  the  attendance  of  his  witnesses.  1 Burr’s  Trial, 
179-80. 

This  section  compared  with  Art.  III.,  Sec.  II.,  clause  3,  and  the 
third,  fourth,  and  fifth  amendments.  Ex  parte  Milligan,  4 Wallace, 
119,  120,  139.  The  history  of  these  guaranties.  Id. 

The  Constitution  of  the  United  States  is  a law  for  rulers  and 
people,  equally  in  war  and  in  peace,  and  covers  with  the  shield  of 
its  protection  all  classes  of  men,  at  all  times  and  under  all  circum- 
stances. Ex  parte  Milligan,  4 Wallace,  120,  121.  But  see  the  war 
power  discussed.  Id.  138,  139.  A military  commission  could  exer- 
cise no  judicial  power  over  a citizen  of  Indiana  during  the  rebellion. 
Id.  The  laws  and  usages  of  war  could  not  be  applied  to  citizens 
in  States  which  have  upheld  the  authority  of  the  government,  and 
where  the  courts  are  open  and  their  process  unobstructed.  Ex 
parte  Milligan,  Id.  121.  This  right  of  trial  by  jury  is  preserved  to 
every  one  accused  of  crime,  who  is  not  attached  to  the  army  or 
navy,  or  militia  in  actual  service.  Id.  See  dissentient  opinion, 
p.  139.  The  fifth  amendment  recognizes  the  necessity  of  an  indict- 
ment or  presentment,  before  any  one  can  be  held  to  answer  for 
high  crimes,  with  the  exception  therein  stated ; by  which  it  was 
meant  to  limit  the  right  of  trial  by  jury,  in  this  sixth  amendment, 
to  those  persons  who  were  subject  to  indictment  or  presentment 
in  the  fifth.  Ex  parte  Milligan,  4 Wallace,  123.  Those  connected 
with  military  or  naval  service  are  amenable  to  the  jurisdiction  which 
Congress  has  created  for  their  government,  and,  while  thus  serv- 
ing, they  surrender  their  right  to  be  tried  by  the  civil  courts.  Id. 
All  other  persons,  citizens  of  States  where  the  courts  are  open,  if 
charged  with  crime,  are  guarantied  trial  by  jury.  Id.  Civil  liberty 
and  martial  law  (at  the  will  of  the  commander)  cannot  endure  to- 
gether; the  antagonism  is  irreconcilable.  Id.  Neither  Congress 
nor  the  President  can  disturb  one  of  these  guaranties  of  liberty, 
except  the  one  concerning  the  writ  of  habeas  corpus.  Id.  But 


Art.  VI.]  CRIMINAL  PROSECUTIONS,  260,  261. 


265 


the  suspension  of  the  writ  and  of  investigation  does  not  give  the  What  is 
power  of  trial  otherwise  than  by  the  course  of  the  common  law. tlie  of 
Id.  125,  126.  Martial  law  cannot  arise  from  threatened  invasion, 

The  necessity  must  be  actual  and  present;  the  invasion  real,  such  corpus? 
as  effectually  closes  the  courts  and  deposes  the  civil  administration.  257- 
Id.  127.  Then  it  may  exist,  until  the  restoration  of  civil  authority,  fies  martial" 
but  no  longer.  Id.  Why  martial  law  cannot  be  tolerated.  (Me-  law? 
Connell  v.  Hampden,  12  Johns.  257;  Smith  v.  Shaw.  Id.  234.)  Ex 
parte  Milligan,  4 Wallace,  129.  The  case  of  Luther  v.  Borden,  7 233. 

Howard,  1,  explained.  Id.  It  was  not  a case  arising  under  the  ' 

* federal  Constitution.  Id.  129,  130.  As  the  applicant  was  a citizen  Can  a 
of  the  United  States  residing  in  Indiana,  he  could  not  be  treated  citizen  be 
as  a prisoner  of  war.  Id.  131,  134.  Chief-Justice  Chase  and  prisoner^* 
Justices  Wayne,  Swayne,  and  Miller  concurred  in  the  judgment  of,  war? 
but  disagreed  as  to  the  powers  of  Congress  over  the  subjects  of 
Military  Law,  which  they  divided  into  the  articles  of  war  for  the  What  is  the 
government  of  the  national  forces,  military  government  supersed- 
ing,  as  far  as  may  be  deemed  expedient,  the  local  law,  and  exer-  how 
cised  by  the  military  commander  under  the  direction  of  the  Presi-  divided? 
dent;  and  Martial  Law  proper,  which  is  called  into  action  by 
Congress,  or  temporarily,  when  the  action  of  Congress  cannot  be 
invoked,  and  in  the  case  of  justifying  or  excusing  peril,  by  the  118, 119. 
President,  in  times  of  insurrection  or  invasion,  or  of  civil  or  foreign 
war,  within  districts  or  localities  where  ordinary  law  no  longer 
adequately  secures  public  safety  and  private  rights. 

This  was  intended  as  a constitutional  safeguard  in  the  trial  of  What  was 
those  cases  for  which  it  was  stipulated  that  the  courts  shall  remain  ^ 
open,  and  wherein  a party  shall  have  his  remedy  by  due  course  of  g^°nty  ?S 
law.  (Beekman  v.  Saratoga  & Schenectady  Railroad  Company,  3 257. 

Paige,  45 ; Bonaparte  v.  C.  & A.  Railway,  Bald.  C.  C.  R.  205  ; Blood- 
good  v.  M.  & H.  Railway,  14  Wend.  51;  S.  C.  18  Wend.  9 ; Stevens 
v.  Middlesex  Canal,  12  Mass.  466 ; Wheelock  v.  Young,  4 Wend. 

650;  Stowel  v.  Plagg,  11  Mass.  364;  Mason  v.  Kennebec  & Port- 
land Railroad  Company,  31  Maine,  215;  Aldrich  v.  The  Cheshire 
Railroad  Company,  1 Foster,  N.  H.  350.)  B.  B.,  Brazos  & C.  R.  R. 

Co.  v.  Ferris,  26  Tex.  599;  Paschal’s  Annotated  Dig.  note  166. 

These  decisions  are  generally  made  upon  similar  provisions  in  the  276,  277. 
State  Constitutions.  This  provision  of  the  Constitution  of  the  Uni- 
ted States  applies  only  to  the  general  government,  and  not  to  the 
States.  Withers  v.  Buckley,  20  How.  84. 

“The  accusation”  means  a copy  of  the  presentment  or  indict-  253. 
ment.  All  of  these  rights  have  been  regulated  by  acts  of  Con- 
gress. 1 St.  88;  1 Briglitly’s  Dig.  221-224,  and  exhaustive  notes 
thereon. 

261.  “Compulsory  process,”  means  forcible  process,  such  as  What  is  the 
attachment.  The  principle  grew  out  of  the  oppressive  one  which  meaning  of 
denied  witnesses  to  the  accused.  See  4 Black.  Com.  359,  360 ; g0compul‘ 
Rawle’s  Const,  ch.  10,  pp.  128,  129;  3 Wilson’s  Law  Lect.  170,  171;  cess”^0" 
Hawk.  P.  C.  ch.  46,  § 160;  2 Hale  P.  C.  283.  Upon  affidavit  of 
inability,  the  accused  can  have  his.  witnesses  at  the  expense  of  the 
United  States.  9 St.  72,  § 11;  1 Brightly’s  Dig.  223,  §116. 

22 


I 


266  COMMON  LAW,  262,  263.  [Amendments, 


Counsel.  262.  “ Assistance  of  Counsel.” — When  this  was  adopted  the 
accused  were  not  allowed  the  assistance  of  counsel  in  England. 
That  defect  has  been  cured  by  an  act  in  1836.  4 Black.  Com.  355, 

356,  note  9;  Story’s  Const.  § 1793-1795. 

For  the  power  of  the  court  to  assign  counsel  in  cases  of  treason, 
see  act  of  30th  April,  1790,  1 St.  117,  § 29;  1 Brightly’s  Dig.  221, 
§104. 

Article  VII. 

Trials  in  Iii  suits  at  common  law,  where  the  value  in  controt 
cm  cases.  yers^  g^a|]  excee(j  twenty  dollars,  the  right  of  trial  by 

jury  shall  be  preserved ; and  no  fact  tried  by  a jury, 
492,  shall  be  otherwise  re-examined  in  any  court  of  the 

493  • • " 

United  States  than  according  to  the  rules  of  the  com- 
mon law. 


What  are 
suits  at 
common 
law  ? 


What  is  the 

common 

law? 


For  whose 
benefit  is 
the  trial  by 
jury  ? 


263.  This  includes  not  merely  the  modes  of  proceeding  known 
to  the  common  law,  but  all  suits  not  of  equity  or  admiralty  juris- 
diction, in  which  legal  rights  are  settled  and  determined.  Parsons 
v.  Bedford,  3 Pet.  433;  United  States  v.  La  Vengeance,  3 Dali. 
297  ; Webster  v.  Reid,  11  How.  437  ; Bains  v.  The  Schooner  James 
& Catherine,  Bald.  544;  Smith’s  Const.  552,  554;  2 Graham  & 
Waterman,  30.  It  does  not  apply  to  an  examination  as  to  the 
claim  for  services  under  the  fugitive  slave  law.  Miller  v.  McQuerry, 
5 McLean,  469 ; In  the  matter  of  Martin,  2 Paine,  348.  Nor  to  a 
motion  for  summary  relief.  Banning  v.  Taylor,  12  Harr.  289. 

The  phrase  “ common  law,”  as  used  in  this  section,  is  used  in 
contradistinction  to  equity,  and  admiralty,  and  maritime  jurispru- 
dence. Parsons  v.  Bedford,  3 Pet.  446;  Story’s  Const.  § 1769; 
Smith’s  Const.  552.  It  is  reconcilable  with  the  3d  article,  and  the 
several  acts  of  Congress  about  jury  trials.  Id.  446.  Neither  this 
article,  nor  the  act  of  1824,  gives  to  the  Supreme  Court  the  right  to 
revise  the  verdict  of  the  jury  upon  the  facts.  Id.  446,  447.  The 
common  law,  or  lex  non  scripta , means  those  immemorial  customs  of 
England,  whereof  the  memory  of  man  runneth  not  to  the  contrary. 
' Bl.  Com.  62. 

The  right  to  trial  by  jury  is  for  the  beuefit  of  the  parties  litigating, 
and  ma}r  be  waived  by  them.  United  States  v.  Rathbone,  2 Paine, 
578.  But  the  circuit  courts  have  no  power  to  order  a peremptory 
nonsuit  against  the  will  of  the  plaintiff.  Elmore  v.  Grymes,  1 Pet. 
469 ; D’Wolf  v.  Rabaud,  Id.  476;  Crane  v.  Lessee  of  Morris,  6 Id. 
598;  Thompson  v.  Campbell,  Hemp.  8.  The  common  law  here 
alluded  to,  is  not  the  common  law  of  any  individual  State,  but  the 
common  law  of  England ; according  to  which,  facts  once  tried  by  a 
jury  are  never  re-examined,  unless  a new  trial  be  granted,  in  the 
discretion  of  the  court  before  which  the  suit  is  depending,  for  good 
cause  shown;  or  unless  the  judgment  of  such  court  be  reversed  by 
a superior  tribunal  on  a writ  of  error,  and  a venire  facias  de  novo 
awarded.  United  States  v.  Wonsou,  1 GalL  20.  The  government 
is  as  much  bound  by  this  provision  as  any  other  party  who  may 
desire  to  collect  a debt.  9 Op.  200. 


Arts.  VII.,  VIII.]  EXCESSIVE  BAIL,  264-267. 


267 


It  has  been  well  settled,  that  the  amendments  to  the  Constitution  277-279 
of  the  United  States  were  never  intended  to  control  the  proceedings 
of  the  State  courts.  (Wood  v.  Wood,  2 Cowen,  819,  note;  Murphy  493. 
v.  The  People,  2 Cowen,  815;  Livingston  v.  Mayor  of  New  York, 

8 Wend.  85,  100;  Warren  v.  Mayor  of  Baltimore,  7 Peters,  250; 
Livingston  v.  Moore,  7 Peters,  551;  Colt  v.  Evers,  12  Conn.  243; 

In  the  matter  of  Smith,  10  Wend.  Rep.  449;  Lea  v.  Tillotson,  24 
Wend.  337.)  2 Graham  & Waterman’s  New  Trials,  p.  31,  note. 

264.  And  no  Fact  tried  by  Jury  shall  be  Re-examined, 

&c. — See  a discussion  on  the  original  Constitution  (prior  to  this 
amendment),  which  gave  appellate  jurisdiction  “ both  as  to  law  and 
fact.1'  Story’s  Const.  § 1763-1770,  and  notes  to  third  edition; 
Federalist,  Nos.  81,  83.  And  see  1 Elliot’s  Debates,  121,  122;  2 Id. 

346,  380-410;  Id.  413-427;  3 Elliot’s  Debates,  139-157;  2 
American  Museum,  425,  534,  540,  548,  553;  3 Id.  318,  347,  419, 

420. 

The  amendment  struck  down  the  objection ; and  has  secured  the  211. 
trial  by  jury  in  civil  cases  in  the  fullest  latitude  of  the  common  law. 

(1  Tucker’s  Bl.  Com.  App.  351;  Rawle’s  Const,  ch.  10,  p.  135; 

Bank  of  Hamilton  v.  Dudley,  2 Pet.  492,  525.)  Story’s  Const. 

§ 1568. 

This  is  a prohibition  to  the  courts  of  the  United  States  to  re-ex- 
amine any  facts  tried  by  a jury,  in  any  other  manner.  (Parsons  v. 
Bedford,  3 Pet.  447.)  Story’s  Const.  § 1770.  It  is  denied  that 
the  judiciary  act  of  1789,  ch.  20,  § 17,  22,  24;  or  the  act  of  1824, 
has  given  the  right  to  the  Supreme  Court  to  grant  a new  trial,  on 
the  mere  facts.  It  was  intimated  that  if  Congress  had  attempted 
to  confer  such  power,  the  act  would  be  unconstitutional.  Id. 

265.  Re-examined  after  Verdict. — Sec.  5 of  the  act  of  3d  264. 
March,  1863  (13  St.  756),  so  far  as  it  authorizes  the  removal  of 
certain  causes  after  verdict,  and  a trial  and  determination  of  the 

facts  and  the  law,  is  in  violation  of  this  amendment.  (14  Mass. 

412.)  Patrie  v.  Murray,  29  How.  Pr.  R.  312;  S.  C.  43  Barb.  323  ; 
Benjamin  v.  Murray,  28  How.  N.  Y.  R.  193.  And  see  The  People 
v.  Murray,  5 Park.  Cr.  577. 

And  see  Spencer  v.  Lapsley,  20  How.  267  ; Martin  Insurance 
Co.  v.  Hodgson,  6 Cr.  206 ; Sims  v.  Hundley,  6 How.  1. 


Article  VIII. 


Excessive  bail  shall  not  be  required,  nor  excessive  What  is  the 
lines  imposed,  nor  cruel  and  unusual  punishments  m- bail,  fines, 

n-  t and  punish- 

nicted.  ments? 


266.  “ Excessive  Bail.” — Bail  is  a delivery  from  custody  on  What  is 
security.  Burrill’s  Law  Die.,  Bail.  The  meaning  is,  that  the  sum  hail? 
required  shall  not  be  too  large.  Bail  should  not  be  fixed  in  crim- 
inal cases  at  a sum  so  large  as  purposely  to  prevent  the  prisoner 

from  giving  bail.  United  States  v.  Lawrence,  4 Cr.  518. 

267.  “ Nor  excessive  Fines,  imposed.” — The  offense  charged 
was  the  keeping  and  maintaining,  without  license,  a tenement  for 


268 


RESERVED  RIGHTS,  267,  268.  [Amendments, 


Give  an 
example  of 
usual  pun- 
ishment ? 


283. 


What  of  the 
reserved 
rights  ? 


What  is 
enumera- 
tion? 

71, 138. 


For  what 
was  the 
amendment 
intended  ? 


Define 

“deny”? 

Define  “ dis- 
parage*'’ ? 


the  illegal  sale  and  illegal  keeping  of  intoxicating  liquors.  It  ap- 
pears from  the  record  that  the  fine  and  punishment  in  the  case  be- 
fore us  was  fifty  dollars,  and  imprisonment  at  hard  labor  in  the 
house  of  correction  for  three  months.  We  perceive  nothing  ex- 
cessive, or  cruel,  or  unusual  in  this.  The  object  of  the  law  was  to 
protect  the  community  against  the  manifold  evils  of  intemperance. 
The  mode  adopted,  of  prohibiting  under  penalties  the  sale  and 
keeping  for  sale  of  intoxicating  liquors,  without  license,  is  the 
usual  mode  adopted  in  many,  perhaps  all,  of  the  States.  It  is 
wholly  within  the  discretion  of  State  legislatures.  Pervear  v.  The 
Commonwealth,  5 Wall.  480.  The  amendment  is  an  exact  tran- 
script of  a clause  in  the  English  Bill  of  Rights  of  1688.  It  was 
intended  to  warn  our  government  against  such  violent  proceedings. 
See  5 Oobbett’s  Pari.  Hist.  110;  2 Elliot’s  Debates,  345 ; 3 Id. 
345;  2 Lloyd’s  Debates,  225,  226;  Rawle’s  Const,  ch.  10,  pp.  130, 
131;  Story’s  Const.  § 1903,  1904. 

This  amendment  does  not  apply  to  the  States,  but  only  restricts 
the  national  government.  (Barker  v.  The  People,  3 Cow.  686 
James  v.  Commonwealth,  12  Sergt.  and  Rawle,  220 ; Barron  v. 
The  Mayor  of  Baltimore,  7 Pet.  243.)  Story’s  Const.  § 1904;  Per- 
vear v.  The  Commonwealth,  5 Wall.  480. 

“Cruel  and  Unusual  Punishments.’’ — The  disfranchisement  of 
a citizen  is  not  an  unusual  punishment.  Barber  v.  The  People,  20 
Johns.  459.  The  punishments  of  whipping  and  standing  in  the 
pillory  are  abolished  by  act  28th  February,  1839,  § 5,  Stat.  322. 
See  James  v.  Commonwealth,  12  S.  & R.  220. 

Article  IX. 

The  enumeration  in  the  Constitution  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. 

268.  “ Enumeration.”— [Lat.  Enumero.\ — The  counting  or 
telling  by  numbers.  Webster’s  Die.,  Enumeration. 

“Of  Certain  Rights.” — This  has  reference  to  the  several 
general  and  special  powers  granted,  surrendered,  or  delegated  to 
the  different  departments  of  the  government.  It  was  intended  to 
prevent  any  perverse  or  ingenious  misapplication  of  the  maxims, 
that  an  affirmation  in  particular  cases  implied  a negation  in  all 
others;  and,  e converso,  that  a negation  in  particular  cases  implies 
an  affirmation  in  all  others.  (Federalist,  Nos.  83,  84;  No.  83  is 
reprinted  in  Story’s  Const.  § 1768,  3d  ed.  pp.  574-582).  Story’s 
Const.  § 1905.  See  also  Id.  § 448. 

“Deny.” — [Lat.  denego .] — To  contradict;  gainsay;  disown;  re- 
ject. Webster’s  Die.,  Deny. 

“ Disparage  ” — [Norman,  desperegar ]. — This  word  is  strangely 
used  here.  It  literally  means  to  dishonor  by  an  unequal  match  or 
marriage;  to  match  unequally;  to  dishonor  or  injure  by  comparison 
with  something  of  less  value  or  excellence ; to  undervalue . Web- 
ster’s Die.,  Disparage. 


Arts.  IX.-XI.] 


269 


DELEGATED  POWERS,  269. 

“Retained  by  the  People.” — “ People”  here  must  be  used  in  6,  2u9, 251, 
the  sense  of  “ We  the  people  ” in  the  preamble,  and  in  the  250- 
tenth  amendment.  To  illustrate  the  right  of  appeal  “ upon  the  law 
and  facts,”  was  given  to  the  Supreme  Court.  It  had  been  objected,  260-262, 
that  this  denied  or  disparaged  the  right  of  trial  by  jury,  as  under-  276-277. 
stood  at  common  law.  Hence  the  sixth  amendment.  Federalist, 

No.  83.  And  hence  the  declaration  of  the  same  general  principle 
in  this  amendment. 

Article  X. 

The  powers  not  delegated  to  the  United  States  How  are 
by  the  Constitution,  nor  prohibited  by  it  to  the  notP°wers 
States,  are  reserved  to  the  States  respectively  or  to  reserved? 
the  people. 

269.  “ The  powers  ” of  course  mean  all  those  which  had  been  What  are 
committed  to  the  different  departments  of  the  government.  the 

“ Delegated.” — [Lat.  Delego]. — To  intrust ; to  commit ; to  deliver  powers?*1 
to  another’s  care  and  exercise.  Webster’s  Die.,  Delegate.  <1-138, 162 

The  secessionists  laid  great  stress  upon  the  word  “ delegate,”  and  every 
and  attached  to  it  the  meaning  that  the  States  had,  in  fact,  surren - note*  g 
dered  none  of  their  sovereignty ; but  only  created  a common 
agency  with  certain  powers,  in  trust,  which  each  State,  for  itself,  494,  495. 
had  the  right  to  resume  at  pleasure.  The  “nor  prohibited  to  the 
states,”  could  have  little  force  with  those  holding  such  doctrines. 

It  has  been  so  fashionable  to  interpolate,  “ expressly,”  that  many 
believe  the  participle  “ delegated  ” is  so  qualified.  But  such  a 
qualification  was  moved  in  Congress  and  rejected.  2 Lloyd’s  De- 
bates, 234,  243,  244;  McCulloch  v.  Maryland,  4 Wheat.  404;  Mar- 
tin v.  Hunter,  1 Wheat.  325;  Houston  v.  Moore,  5 Wheat.  49; 

Anderson  v.  Dunn,  6 Wheat.  225,  226;  2 Article  of  Confederation, 
ante , p.  9.  See  Ableman  v.  Booth,  21  How.  596. 

All  powers  not  delegated  (not  all  not  expressly  delegated)  and 
not  prohibited  are  reserved.  (McCulloch  v.  Maryland,  4 Wheat. 

406,  407.)  Story’s  Const.  § 1908. 

See  United  States  v.  Bailey,  1 McLean,  234.  The  same  reserva- 133, 155. 
tion,  in  substance,  was  contained  in  the  second  article  of  the  Arti- 
cles of  Confederation,  except  that  the  word  “expressly”  was  there 
placed  before  the  word  “delegated.”  Metropolitan  Bank  v.  Van 
Dyck,  27  N.  Y.  Rep.  416;  McCulloch  v.  Maryland,  4 Wh.  327. 

See  ante , p.  9.  This  amendment  compared  with  the  9th  section 
of  the  1st  article.  They  contain  no  inhibition  upon  Congress  to 
legislate  upon  legal  tenders.  Metropolitan  Bank  v.  Yan  Dyck,  27 
N.  Y.  Rep.  418. 

Article  XI. 

The  judicial  power  of  the  United  States  shall  not  what  is  tiie 
be  construed  to  extend  to  any  suit  in  law  or  equity  of  judicial 
commenced  or  prosecuted  against  one  of  the  United. power? 


270 


JUDICIAL  POWER,  270-272.  [Amendments, 


271. 


Citizens.  States,  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State. 

What  caused  270.  “ THE  JUDICIAL  POWER,”  and  “ANY  SUITS  IN  LAW  OR 
ment?0611*1"  EQUITY>”  are  to  taken  as  an  amendment  of  the  first  section  of 
195, 199,  200,  the  third  article,  so  as  to  take  away  the  jurisdiction  of  suits  against 

205a,  210,  States  by  individuals.  The  ameudment  was  caused  by  the  decision 

in  Chisholm  v.  Georgia,  2 Dallas,  419,  475;  S.  C.  2 Cond.  635;  1 

Kent’s  Com.  Lect.  14,  p.  278;  Cohens  v.  Virginia,  6 Wheat.  381, 

406. 

This  decision  held  that  the  original  Constitution  embraced  suits 
by  as  well  as  against  States.  Story’s  Const.  § 1683.  See  Federalist, 
Nos.  80,  81;  2 Elliot’s  Debates,  300,  301,  401,  405;  Curtis’  Com. 
§ 61.  The  suits  against  the  States  were  principally  for  money  se- 
questrated or  confiscated  in  the  hands  of  the  debtors  of  the  British 
loyalists.  The  amendment  was  held  to  extend  to  all  pending  suits, 
and  they  were  dismissed.  Hollingsworth  v.  Virginia,  3 Dali.  378  ; 
Cohens  v.  Virginia,  6 Wheat.  294 ; Georgia  v.  Brailsford,  2 Dali. 
402 ; S.  C.  3 Dali.  1. 

So  that  now  no  suit  lies  by  citizen  or  alien  against  a State,  in  the 
courts  of  the  United  States. 


What  is 
now  the 

rule? 


In  what 
character 
must  the 
State  sue  ? 
205. 


What  suits 
did  the 
amendment 
include  ? 


271.  “Against  one  of  the  United  States.” — Where  the 
State  is  sued,  and  made  a party  on  the  record  in  its  political  capaci- 
ty, this  amendment  applies ; and  the  State  may  be  considered  as 
a party  on  the  record  when  its  chief  magistrate  is  sued,  not  by  his 
name,  but  by  his  style  of  office,  and  the  claim  made  upon  him 
is  entirely  in  his  official  character.  (The  Governor  of  Georgia  v. 
Madrazo,  1 Pet.  110,  123,  124.)  Curtis’  Com.  § 67-70. 

This  amendment  was  construed  to  include  suits  then  pending,  as 
well  as  suits  to  be  commenced  thereafter ; and  accordingly,  all  the 
suits  then  pending  were  dismissed  without  any  further  adjudica- 
tion. (Hollingsworth  v.  Virginia,  3 Dali.  378.)  Story’s  Const. 
§ 1683.  For  a history  of  the  amendment,  see  Cohens  v.  Virginia, 
6 Wheat.  406. 

The  amendment  only  applies  to  original  suits ; not  to  appeals  or 
writs  of  error  for  revision.  (Cohens  v.  Virginia,  6 Wheat.  264.) 
Story’s  Const.  § 1864. 

272.  “ By  Citizens  or  Subjects  of  any  foreign  State.” — 
The  power  of  these  to  sue  the  State  was  simply  taken  away  by 
the  amendment. 

It  does  not  extend  to  suits  of  admiralty  or  maritime  jurisdiction, 
suit  apply  to  oimstead’s  Case,  Brightly,  9.  See  Ex  parte  Madrazo,  1 Pet.  127. 
mu  a tv  jj.  g£ate  be  not  necessarily  a defendant,  though  its  interest 
may  be  affected  by  the  decision,  the  courts  of  the  United  States 
are  bound  to  exercise  jurisdiction.  Louisville  R.  R.  Co.  v.  Letson, 
2 How.  550;  United  States  v.  Peters,  5 Cr.  115.  For  the  history 
of  this  amendment,  see  Chisholm  v.  Georgia,  2 Dali.  471,  475.  A 
State,  by  becoming  interested  with  others  in  a banking  or  trading 
corporation,  or  by  owning  all  the  capital  stock,  does  not  impart  to 
that  corporation  any  of  its  privileges  or  prerogatives ; it  lays  down 
its  sovereignty,  so  far  as  respects  the  transactions  of  the  corpora- 


Does  the 


admiralty 
cases  ? 


205a 


Arts.  XI.-XIIL]  SLAVERY  ABOLISHED,  273,  274. 


271 


tion,  and  exercises  no  power  or  privilege  in  respect  to  those  transac-  Explained, 
tions  not  derived  from  the  charter.  Bank  of  the  United  States  v. 

Planter’s  Bank  of  G-eorgia,  9 Wh.  904  ; Bank  .of  Kentucky  v.  Wis- 
ton,  3 Pet.  431  ; Briscoe  v.  Bank  of  Kentucky,  1 1 Id.  324 ; Louisville 
K.  R.  Co.  v.  Letson,  2 How.  497  ; Darrington  v.  Bank  of  Alabama, 

13  How.  12  ; Curran  v.  Arkansas.  15  Id.  309.  And  see  Cohens  v. 

Virginia,  6 Wh.  264.  Where  a State  sues  in4”  its  own  courts,  and 
obtains  a judgment  against  a citizen,  the  defendant  may  prosecute 
a writ  of  error  in  the  Supreme  Court,  and  test  the  constitutionality 
of  a State  law.  Craig  v.  Missouri,  4 Pet.  410 ; and  the  Arkansas, 
Kentucky,  and  Alabama  cases  above  cited. 

The  State  is  not  a party  unless  it  appears  on  the  record  as  such,  205,  271. 
either  as  plaintiff  or  defendant.  It  is  not  sufficient  that  it  may  have 
an  interest  in  the  cause,  or  that  the  parties  before  the  court  are 
sued  for  acts  done  as  agents  of  the  State.  (Fowler  v.  Lindsay,  3 
Dali.  411 ; State  of  New  York  v.  Connecticut,  3 Dali.  1-6  ; United 
States  v.  Peters,  5 Cr.  115-139;  1 Kent’s  Com.  Lect.  15,  p.  302; 

Osborn  v.  Bank  of  United  States,  9 Wheat.  846.)  Story’s  Const. 

§ 1865,  notes  1,  2. 

Article  XII. 

273.  See  Art.  II.,  Sec.  3,  pp.  164-166,  notes  168,  168a,  1686,  for 
this  amendment.  It  was  considered  proper  by  the  editor  to  trans- 
fer it  to  its  appropriate  place.  It  does  not  disturb  the  arrangement 
in  the  original  Constitution,  nor  in  the  analysis  and  index.  See 
ante , p.  46. 


Article  XIII. 

1 . Neither  slavery  nor  involuntary  servitude,  except  How  was 
as  a punishment  for  crime,  whereof  the  party  shall  atxSisZed? 
have  been  duly  convicted,  shall  exist  within  the  496-499 
United  States,  or  any  place  subject  to  their  juris 
diction. 

2.  Congress  shall  have  power  to  enforce  this  article  The  power? 
by  appropriate  legislation. 

274.  The  following  is  the  proclamation  which  declared  the  1 3th  When  did 
amendment  in  force  : — this  article 

William  H.  Seward,  Secretary  of  State  of  the  United  States, takeetfect? 
to  all  to  whom  these  presents  may  come,  greeting : 

Know  ye,  that  whereas  the  Congress  of  the  United  States,  on 
the  1st  of  February  last,  passed  a resolution  which  is  in  the  words 
following,  namely: — 

“ A Resolution  submitting  to  the  Legislatures  of  the  several  States  a 
proposition  to  amend  the  Constitution  of  the  United  States. 

11  Resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled  {two-thirds  of  both  houses 


272  SLAVERY  ABOLISHED,  274.  [Amendments, 

496.  concurring ),  That  the  following  article  he  proposed  to  the  legis- 

latures of  the  several  States  as  an  amendment  to  the  Constitution 
of  the  United  States,  which,  when  ratified  by  three-fourths  of 
said  legislatures,  shall  be  valid,  to  all  intents  and  purposes,  as  a 
part  of  the  said  Constitution,  namely:” — [Here  follows  the  amend- 
ment.] 

And  whereas  it  appears  from  official  documents  on  file  in 
this  department  that  the  amendment  to  the  Constitution  of  the 
United  States  proposed,  as  aforesaid,  has  been  ratified  by  the  legis- 
latures of  the  States  of  Illinois,  Rhode  Island,  Michigan,  Maryland, 
New  York,  West  Virginia,  Maine,  Kansas,  Massachusetts,  Penn- 
sylvania, Virginia,  Ohio,  Missouri,  Nevada,  Indiana,  Louisiana, 
Minnesota,  Wisconsin,  Vermont,  Tennessee,  Arkansas,  Connecti- 
cut, New  Hampshire,  South  Carolina,  Alabama,  North  Carolina, 
and  Georgia ; in  all  twenty-seven  States : 

And  whereas  the  whole  number  of  States  in  the  United  States 
is  thirty-six;  and  whereas  the  before  specially -named  States, 
whose  legislatures  have  ratified  the  said  proposed  amendment, 
constitute  three-fourths  of  the  whole  number  of  States  in  the 
United  States : 

Now,  therefore,  be  it  known  that  I,  William  H.  Seward,  Secre- 
tary of  State  of  the  United  States,  by  virtue  and  in  pursuance  of 
the  second  section  of  the  act  of  Congress,  approved  the  twentieth 
of  April,  eighteen  hundred  and  eighteen,  entitled  w An  act  to  pro- 
vide for  the  publication  of  the  laws  of  the  United  States  and  for 
other  purposes,”  do  hereby  certify  that  the  amendment  aforesaid 
has  become  valid,  to  all  intents  and  purposes,  as  a part  of  the 
Constitution  of  the  United  States. 

In  testimony  whereof,  I have  hereunto  set  my  hand,  and  caused 
the  seal  of  the  Department  of  State  to  be  affixed. 

Done  at  the  city  of  Washington,  this  eighteenth  day  of  Decem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
five,  and  of  the  independence  of  the  United  States  of  America,  the 
ninetieth. 

[l.  s.]  WILLIAM  H.  SEWARD, 

Secretary  of  State. 

IT,  275.  This  proclamation  is  given  to  show  the  views  of  the  executive, 

that  the  seceded  States  had  a right  to  vote  upon  the  amendment, 
and  did  in  fact,  make  up  the  number  necessary  to  put  it  into  op- 
eration. The  President  had  previously  given  notice,  that  no  State 
would  be  regarded  as  restored  until  it  adopted  this  amendment. 
Seward’s  dispatch  to  the  governor  of  Florida. 

List  of  States  which  have  ratified  the  amendment  to  the  Consti- 
tution prohibit1  ng  slavery,  &c.,  and  given  official  notice  thereof, 
with  the  respective  dates  of  ratification  : — 

In  1865. — Illinois,  Feb.  1 ; Rhode  Island,  Feb.  2;  Michigan, 
Feb.  2;  Maryland,  Feb.  1,  3,;  New  York,  Feb.  2,  3,;  West  Virginia, 
Feb.  3 : Maine,  Feb.  7 ; Kansas,  Feb.  7 ; Massachusetts,  Feb.  8 , 
Pennsylvania,  Feb.  8:  Virginia.  Feb.  9;  Ohio,  Feb.  10;  Missouri, 
Feb.  10;  Nevada,  Feb.  16;  Indiana,  Feb.  16;  Louisiana,  Feb.  17; 
Minnesota,  Feb.  8,  23:  Wisconsin,  March  1 ; Vermont,  March  9 , 
Tennessee,  April  5,7;  Arkansas,  April  20;  Connecticut,  May  G , 


Art.  XIII.] 


CITIZENSHIP,  274. 


27?. 


New  Hampshire,  July  1 ; South  Carolina,  Nov.  13  ; Alabama,  Dec.  497. 

2;  North  Carolina,  Dec.  4;  Georgia,  Dec.  9;  Oregon,  Dec.  11; 

California,  Dec  20;  Florida,  Dec.  28  In  1866. — New  Jersey,  Jan. 

23;  Iowa,  Jan.  24. 

It  will  thus  be  seen  that  the  States  which  have  not  ratified  the 
amendment  are  Delaware,  Kentucky,  Mississippi,  and  Texas. 

Delaware  alone,  of  these,  gave  notice  through  the  governor,  of  the 
rejection.  Governor  Parker  of  New  Jersey,  gave  notice  of  rejec- 
tion on  the  first  of  December,  1865  ; but  the  same  State  afterward 
ratified  it. 

Because  of  this  amendment  Congress  had  the  right  to  pass  the 
Civil  Rights  Bill  to  secure  the  citizenship  of  the  negro.  Smith  v. 

Moody,  26  lnd.  307. 

In  the  matter  of  Elizabeth  Turner,  on  Habeas  Corpus,  by  Chief- 
Justice  Chase  (Maryland,  1867).  And  because  of  the  Civil  Rights 
Bill,  the  United  States  Circuit  Court  had  jurisdiction  of  a Habeas  6,  18,  220. 
Corpus  case,  to  relieve  a child  of  color  from  an  apprenticeship,  under 
the  laws  of  Maryland,  which  were  in  conflict  with  that  law.  Id. 

The  apprenticeship,  among  other  things,  allowed  the  assignment 
of  the  apprentice’s  services  by  the  master,  with  the  sanction  of  the 
orphan’s  court.  The  Chief-Justice  said  : “ The  following  proposi- 
tions seem  to  me  to  be  sound  law,  and  they  decide  the  case : First. 

The  first  clause  of  the  thirteenth  amendment  to  the  Constitution 
of  the  United  States  interdicts  slavery  and  involuntary  servitude, 
except  as  a punishment  for  crime,  and  establishes  freedom  as  the 
constitutional  right  of  all  persons  in  the  United  States.  Second. 

The  alleged  apprenticeship  in  the  present  case  is  involuntary  ser- 
vitude within  the  meaning  of  these  words  in  the  amendment.”  Id. 

This  amendment  is  the  last  one  made.  It  trenches  directly  upon 
the  power  of  the  States  and  of  the  people  of  the  States.  It  is  the 
first  and  only  instance  of  a change  of  this  character  in  the  organic 
law.  United  States  v.  Rhodes  (by  Justice  Swayne,  Kentucky,  Oct. 

T.  1867). 

The  act  of  Congress  (the  Civil  Rights  Bill)  confers  citizenship.  Who  are 
The  Constitution  uses  the  words  “citizen”  and  “natural  born  citizens  °f 
citizen;”  but  neither  that  instrument  nor  any  act  of  Congress  united 
has  attempted  to  define  their  meaning.  In  Johnson’s  Dictionary,  states? 
“citizen”  is  thus  defined:  “(1)  A freeman  of  a city;  not  a 18, 19, 35, 46, 

foreigner;  not  a slave;  (2)  a townsman,  a man  of  trade;  not  a 220-222’ 
gentleman;  (3)  an  inhabitant;  a dweller  in  any  place.”  In  ’ 

Jacob’s  Law  Dictionary  (edition  of  1783)  the  only  definition  given 
is  as  follows  : “ Citizens  ( cives ) of  London  are  either  freemen  or  such 
as  reside  and  keep  a family  in  the  city,  &c. ; and  some  are  citizens 
and  freemen,  and  some  are  not,  who  have  not  so  great  privileges  as 
others.  The  citizens  of  London  may  prescribe  against  a statute 
because  their  liberties  are  re-enforced  by  statute.  (1  Roll.  105.)”  Id. 

“The  word  civis,  taken  in  the  strictest  sense,  extends  only  to 
him  that  is  entitled  to  the  privileges  of  a city  of  which  he  is  a mem- 
ber, and  in  that  sense  there  is  a distinction  between  a citizen  and 
an  inhabitant  within  the  same  city,  for  every  inhabitant  there  is  not 
a citizen.”  (Scott  qui  tam  v.  Swartz,  Com.  Rep.  68.)  Id. 

“A  citizen  is  a freeman  who  has  kept  a family  in  a city.”  (Roy 
v.  Hanger,  1 Roll.  Rep.  138,  149.)  Id. 


274: 


500. 


What  was 
the  effect  of 
the  Ameri- 
can Revolu- 
tion upon 
citizenship  \ 
220. 


CITIZENSHIP,  274.  [Amendments 


“The  term  citizen,  as  understood  in  our  law,  is  precisely  analo- 
gous to  the  term  subject  in  the  common  law;  and  the  change  of 
phrase  has  entirely  resulted  from  the  change  of  government.  The 
sovereignty  has  been  changed  from  one  man  to  the  collective  body 
of  the  people,  and  he  who  before  was  a subject  of  the  king  is  now  a 
citizen  of  the  State.”  (The  State  v.  Manuel,  4 Dev.  & Batt.  26.)  Id. 

“ During  the  war  each  part}r  claimed  the  allegiance  of  the  natives 
of  the  colonies  as  due  exclusively  to  itself.  The  Americans  insisted 
upon  the  allegiance  of  all  born  within  the  States,  respectively ; and 
Great  Britain  asserted  an  equally  exclusive  claim.  The  treaty  of 
1783  acted  upon  the  state  of  things  as  it  existed  at  that  period.  It 
took  the  actual  state  of  things  as  its  basis.  All  those,  whether  na- 
tives or  otherwise,  who  then  adhered  to  the  American  States,  were 
virtually  absolved  from  their  allegiance  to  the  British  crown,  and 
those  who  then  adhered  to  the  British  crown  were  deemed  and 
held  subjects  of  that  crown.  The  treaty  of  peace  was  a treaty 
operating  between  the  States  on  each  side,  and  the  inhabitants 
thereof : in  the  language  of  the  seventh  article,  it  was  a ‘ firm  and 
perpetual  peace  between  his  British  majesty  and  the  said  States, 
a,nd  between  the  subjects  of  the  one  and  the  citizens  of  the  other'  Who 
then  were  subjects  or  citizens  was  to  be  decided  by  the  state  of  facts. 
If  they  were  originally  subjects  of  Great  Britain  and  then  adhered 
to  her,  and  were  claimed  by  her  as  subjects,  the  treaty  deemed  them 
such;  if  they  were  originally  British  subjects,  but  then  adhering  to 
the  states,  the  treaty  deemed  them  citizens.”  (Shanks  v.  Dupont, 
3 Pet.  247.)  United  States  v.  Rhodes  (Justice  Swayne). 

All  persons  born  in  the  allegiance  of  the  king  are  natural  born 
subjects,  and  all  persons  born  in  the  allegiance  of  the  United  States 
are  natural  born  citizens.  Birth  and  allegiance  go  together.  Such 
is  the  rule  of  the  common  law,  and  it  is  the  common  law  of  this 
country  as  well  as  of  England.  There  are  two  exceptions,  and  only 
two,  to  the  universality  of  its  application.  The  children  of  ambas- 
sadors are,  in  theory,  born  in  the  allegiance  of  the  powers  the  am- 
bassadors represent,  and  slaves,  in  legal  contemplation,  are  prop- 
erty, and  not  persons.  (2  Kent’s  Com.  3d  ed.  1 ; Calvin’s  Case,  7 
Coke,  1 ; 1 Black.  Com.  366 ; Lynch  v.  Clark,  1 Sandf.  Ch.  Rep.  139.) 

The  common  law  has  made  no  distinction  on  account  of  race  or 
color.  None  is  now  made  in  England  nor  in  any  other  Christian 
country  of  Europe.  The  fourth  of  the  articles  of  confederation, 
(ante,  p.  10)  quoted;  also  Scott  v.  Sandford,  19  How.  575.  Id. 
When  the  Constitution  was  adopted,  free  men  of  color  were  clothed 
with  the  franchise  of  voting  in  at  least  five  States,  and  were  a part 
of  the  people  whose  sanction  breathed  into  it  the  breath  of  life. 
(Scott  v.  Sandford,  19  IIow.  573;  The  State  v.  Manuel,  2 Dev.  & 
Batt.  24,  25.)  United  States  v.  Rhodes. 

“ Citizens  under  our  Constitution  and  laws  mean  free  inhabitants 
born  within  the  United  States  or  naturalized  under  the  law’s  of 
Congress.”  (1  Kent’s  Com.  292,  note.)  It  is  further  said  in  the 
note  in  1st  Kent’s  Commentaries,  before  referred  to:  “If  a slave 
born  in  the  United  States  be  manumitted  or  otherwise  lawfully  dis- 
charged from  bondage,  or  if  a black  man  born  in  the  United  States 
become  free,  he  becomes  thenceforw’ard  a citizen,  but  under  such 
disabilities  as  the  law's  of  the  several  States  may  deem  it  expe 
dient  to  prescribe  to  persons  of  color.”  Id. 


Art.  XIII.] 


CITIZENSHIP,  274. 


275 


In  the  case  of  the  State  v.  Manuel  it  was  remarked:  ££  It  has  been  18,  220. 
said  that,  by  the  Constitution  of  the  United  States,  the  power  of 
naturalization  has  been  conferred  exclusively  upon  Congress,  and 
therefore  it  cannot  be  competent  for  any  State  by  its  municipal 
regulations  to  make  a citizen.  But  what  is  naturalization  ? It  is 
the  removal  of  the  disabilities  of  alienage.  Emancipation  is  the 
removal  of  the  incapacity  of  slavery.  The  latter  depends  wholly 
upon  the  internal  regulations  of  the  State.  The  former  belongs  to 
the  government  of  the  United  States.  It  would  be  dangerous  to 
confound  them.”  (The  State  v.  Manuel,  2 Dev.  & Batt.  25 ; The 
State  v.  Newcomb,  5 Iredell,  253.)  Id. 

We  cannot  deny  the  assent  of  our  judgment  to  the  soundness  of 
the  proposition,  that  the  emancipation  of  a native-born  slave  by  re- 
moving the  disability  of  slavery  made  him  a citizen.  If  these  views 
be  correct,  the  provision  in  the  act  of  Congress  conferring  citizen- 
ship was  unnecessary  and  is  inoperative.  Granting  this  to  be  so, 
it  was  well,  if  Congress  had  the  power,  to  insert  it,  in  order  to  pre- 
vent doubts  and  differences  of  opinion  which  might  otherwise  have 
existed  upon  the  subject.  We  are  aware  that  a majority  of  the 
court  in  the  case  of  Scott  v.  Sandford,  arrived  at  conclusions  differ- 
ent from  those  we  have  expressed.  But  in  our  judgment  these 
points  were  not  before  them.  They  decided  that  the  whole  case, 
including  the  agreed  facts,  was  open  to  their  examination,  and  that 
Scott  was  a slave.  This  central  and  controlling  fact  excluded  all 
other  questions,  and  what  was  said  upon  them  by  those  of  the  ma- 
jority, with  whatever  learning  and  ability  the  argument  was  con- 
ducted, is  no  more  binding  upon  this  court  as  authority  than  the 
views  of  thfe  minority  upon  the  same  subjects.  (Carroll  v.  Carroll, 

16  How.  287.)  Id. 

Citizenship  has  no  necessary  connection  with  the  franchise  of  What  is  the 
voting,  eligibility  to  office,  or  indeed  with  any  other  rights,  civil  or  po-  effect  of 
litical.  Women,  minors,  and  persons  non  compos  are  citizens,  and  not  upoiinS  ^ 
the  less  so  on  account  of  their  disabilities.  In  England,  not  to  advert  suffrage  ? 
to  the  various  local  regulations,  the  new  reform  bill  gives  the  right  22°* 
of  voting  for  members  of  Parliament  to  about  eight  hundred  thou- 
sand persons  from  whom  it  was  before  withheld.  There,  the  sub- 
ject is  wholly  within  the  control  of  Parliament.  Here,  until  the 
1 3th  amendment  was  adopted,  the  power  belonged  entirely  to  the 
States,  and  they  exercised  it  without  question  from  any  quarter,  as 
absolutely  as  if  they  were  not  members  of  the  Union.  Id. 

Our  attention  has  been  called  to  several  treaties  by  which  In- 
dians were  made  citizens;  to  those  by  which  Louisiana,  Florida,  and 
California  were  acquired,  and  to  the  act  passed  in  relation  to  Texas.  220,  280, 117. 
All  this  was  done  under  the  war  and  treaty-making  powers  of  the 
Constitution,  and  those  which  authorize  the  national  government 
to  regulate  the  territory  and  other  property  of  the  United  States, 
and  to  admit  new  States  into  the  Union.  (American  Ins.  Co.  v. 

Canter,  1 Pet.  511;  Cross  v.  Harrison,  16  How.  164;  2 Story’s  Const 
158.)  Id. 

Congress  has  power  ££  to  establish  an  uniform  rule  of  naturali- 
zation.” Art.  1,  Sec.  8.  After  considerable  fluctuation  of  judicial 
opinion  it  was  finally  settled,  by  the  Supreme  Court,  that  this 


[Amendments, 


276 

500, 503. 


93. 


267. 


220-223. 


188. 


85. 


89. 


195. 


CITIZENSHIP,  274. 


power  is  vested  exclusively  in  Congress.  (Collet  v.  Collet,  2 Dali. 
294;  United  States  v.  Yelati,  2 Dali.  370;  Golden  v.  Prince,  3 
Wash.  C.  C.  313;  Chirac  v.  Chirac,  2 Wheat.  259;  Houston  v. 
Moore,  2 Wheat.  49  ; Federalist,  No.  32.)  United  States  v.  Rhodes. 
Id.  An  alien  naturalized  is  “ to  all  intents  and  purposes  a 
natural  born  subject.”  (Co.  Litt.  129.)  Id.  “Naturalization 
takes  effect  from  birth ; denization  from  the  date  of  the  patent.” 
(Yin.  Ab.  Tit.  Alien,  D.j  Id. 

The  form  under  the  English  act  of  Parliament  appears  in 
Godfrey  v.  Dickson,  Cro.  Jac.  539,  c.  7.  Under  the  late  act,  a 
resident  alien  may  accomplish  the  object  by  a petition  to  the  Sec- 
retary of  State  for  the  Home  Department  Id. 

The  power  is  applicable  only  to  those  of  foreign  birth.  Alienage 
is  an  indispensable  element  in  the  process.  To  make  one  of  domes- 
tic birth  a citizen,  is  not  naturalization,  and  cannot  be  brought 
within  the  exercise  of  that  power.  There  is  an  universal  agree- 
ment of  opinion  upon  this  subject.  (Scott  v.  Sandford,  19  How. 
p.  578;  2 Story’s  Const.  44.)  Id.  It  was  well  remarked  by  one 
of  the  dissenting  judges,  in  Scott  v.  Sandford,  19  Howard,  586,  in 
regard  to  the  African  race:  “ The  Constitution  has  not  excluded 
them,  and  since  that  has  conferred  on  Congress  the  power  to  natu- 
ralize colored  aliens,  it  certainly  shows  that  color  is  not  a necessary 
qualification  for  citizenship  under  the  Constitution  of  the  United 
States.”  Id.  The  Constitution,  10th  amendment,  and  clause  2 of 
Sec.  2,  Art.  IY.,  and  generally  the  notes  thereon  {ante,  notes  220. 
221),  quoted.  Id. 

What  the  several  States  under  the  original  Constitution  only 
could  have  done,  the  nation  has  done  by  the  thirteenth  amendment. 
An  occasion  for  the  exercise  of  this  power  by  the  States  may  not, 
perhaps  cannot,  hereafter  arise.  United  States  v.  Rhodes. 

The  thirteenth  amendment  quoted,  and  the  same  rules  of  inter- 
pretation applied  to  “ appropriate  legislation.”  That  is,  “ ap- 
propriate" is  equivalent  to  “ necessary  and  proper.”  (McCulloch 
v.  Maryland,  4 Wheat.  421-423.)  Id.  The  rule  in  the  United 
States  v.  Coombs,  12  Pet.  72;  United  States  v.  Holliday,  3 Walk 
407  ; United  States  v.  Beavan,  3 Wheat.  390  ; Prigg  v.  Pennsyl- 
vania, 1 6 Pet.  60 ; quoted  and  applied  as  to  the  general  power. 
Id.  [Out  of  its  place  it  may  be  noted,  that  under  the  power  to 
regulate  commerce,  it  has  recently  been  ruled,  that  the  power  ex- 
tends to  commerce  on  land,  carried  on  by  railroads  which  are  parts 
of  lines  of  inter-State  communication,  as  well  as  to  commerce 
carried  on  by  vessels,  and  such  railroads  may  be  regulated  by  Con- 
gress as  well  as  steamboats.  By  Associate  Justice  Miller,  in  Gray 
v.  Clinton  Bridge,  American* Law  Register  (January,  1868),  pp.  149- 
154.  The  power  to  regulate  commerce  is  the  power  to  regulate  the 
instruments  of  commerce.  (Cooley  v.  The  Board  of  Wardens,  12 
How.  316.)  Id.  And  it  extends  to  railroads  as  well  as  steam- 
boats. Id] 

Since  the  organization  of  the  Supremo  Court,  but  three  acts  of 
Congress  have  been  pronounced  by  that  body  void  for  unconstitution- 
ality. (Marbury  v.  Madison,  1 Cr.  137 ; Scott  v.  Sandford,  19  How. 
393  ; Ex  parte  Garland,  4 Wall.  334.)  United  States  v.  Rhodes. 

The  present  effect  of  the  amendment  was  to  abolish  slavery 


Art.  XIII.] 


EMANCIPATION,  274. 


277 


wherever  it  existed  within  the  jurisdiction  of  the  United  States.  501. 

In  the  future  it  throws  its  protection  over  every  one,  of  every  race, 
color,  and  condition,  within  that  jurisdiction,  and  guards  them 
against  the  recurrence  of  the  evil.  Id. 

The  history  of  slavery,  and  the  State  legislation  which  followed 
its  destruction  given.  The  Civil  Rights  law  is  an  “appropriate” 
means  of  carrying  out  the  object  of  the  first  section  of  the  amend- 
ment. Id. 

It  would  be  a remarkable  anomaly  if  the  national  government, 
without  this  amendment,  could  confer  citizenship  on  aliens  of  every 
race  or  color,  and  citizenship,  with  civil  and  political  rights,  on  the  18,  220. 

“ inhabitants  ” of  Louisiana  and  Florida,  without  reference  to  race 
or  color,  and  cannot,  with  the  help  of  the  amendment,  confer  on 
those  of  the  African  race,  who  have  been  born  and  always  lived 
within  the  United  States,  all  that  this  law  seeks  to  give  them. 

It  was  passed  by  the  Congress  succeeding  the  one  which  pro- 
posed the  amendment.  Many  of  the  members  of  both  Houses 
were  the  same.  This  fact  is  not  without  weight  and  significance. 
(McCulloch  v.  Maryland,  4 Wheat.  401.)  Id. 

The  amendment  reversed  and  annulled  the  original  policy  of  the 
Constitution,  which  left  it  to  each  State  to  decide  exclusively  for 
itself  whether  slavery  should  or  should  not  exist  as  a local  institu- 
tion, and  what  disabilities  should  attach  to  those  of  the  servile  race 
within  its  limits.  The  whites  needed  no  relief  nor  protection,  and 
they  are  practically  unaffected  by  the  amendment.  The  emancipa- 
tion which  it  wrought  was  an  act  of  great  national  grace,  and  was 
doubtless  intended  to  reach  further  in  its  effects,  as  to  every  one 
within  its  scope,  than  the  consequences  of  manumission  by  a 
private  individual.  We  entertain  no  doubt  of  the  constitutionality 
of  the  act  in  all  its  provisions.  It  gives  only  certain  civil  rights. 

We  are  not  unmindful  of  the  opinion  of  the  Court  of  Appeals  of 
Kentucky,  in  the  case  of  Brown  v.  The  Commonwealth.  With  all 
our  respect  for  the  eminent  tribunal  from  which  it  proceeded,  we 
have  found  ourselves  unable  to  concur  in  its  conclusions.  The 
constitutionality  of  the  act  is  sustained  by  the  Supreme  Court  of 
Indiana  and  the  Chief-Justice  of  the  Court  of  Appeals  of  Maryland, 
in  able  and  well-considered  opinions.  (Smith  v.  Moody,  26  Ind. 

307  ; In  re  A.  II.  Somers.)  United  States  v.  Rhodes.  Id. 

The  nisi  prius  courts  of  several  of  the  Southern  States  have  de- 
cided against  the  constitutionality  of  the  Civil  Rights  law  on 
various  grounds ; but  the  editor  regrets  that  he  has  not  preserved 
the  newspaper  reports  of  their  decisions. 

Where  an  obligation  was  given  to  pay  £7,800  sterling  for  a trans-  What  effedt 
fer  of  the  vendor’s  claim  to  the  services  of  153  apprentices  (who  ha(i  such  a 
had  been  slaves),  but  before  the  installments  fell  due,  the  slaves  contracts? 
were  declared  free  and  obtained  their  freedom,  under  an  ordinance 
of  Berbice,  in  British  Guiana,  in  pursuance  of  the  act  of  3 and  4 W. 

IV.,  c.  73,  S.  10,  whereby  the  defendant  lost  the  services,  so  that  the 
covenant  of  warranty  of  title  failed ; held,  that  the  plaintiff  was  en- 
titled to  the  last  two  installments,  though  the  legislature  had  deter- 
mined the  apprenticeship  before  they  became  due.  Mittelhozezer 
v.  Fullarton,  6 Adolph.  & Ellis,  989,  990. 


278 


499. 


Who  are 
citizens 
of  the 
United 
States  ? 


EMANCIPATION,  274.  [Amendments, 

Lord  Denman  : “ My  brother  Wightman  asked  what  would  ha  vs 
been  the  result  if,  at  the  end  of  the  year,  the  services  had  been 
determined  by  the  act  of  God.  And  to  this  no  sufficient  answer 
was  given.”  Id.  1018.  The  plaintiff’s  right  vested  when  the  bar- 
gain was  made ; the  subsequent  interference  of  the  colonial  legis- 
lature does  not  prevent  his  recovering  what  was  then  stipulated. 
Id.  The  whole  question  is,  who  shall  bear  the  losses  occasioned  by 
a vis  major.  And  that  depends  upon  the  question,  who  was  the 
proprietor  when  that  loss  was  occasioned.  Id. 

The  question  was  whether  the  defendants  were  liable  for  the 
value  of  slaves  purchased  in  Texas  in  September,  1863.  “I  have 
always  regarded  the  proclamation  of  the  President,  issued  on  the  1st 
January,  1863,  declaring  the  negroes  free,  as  a war  measure.  The 
President  did  not  base  his  right  to  issue  that  proclamation  upon  any 
clause  of  the  Constitution,  or  even  any  act  of  Congress.  It  was 
justified  by  the  necessities  of  the  war,  and,  as  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  he  resorted  to  it,  as  he 
himself  declared,  as  a war  measure . Its  operation  and  effect  de- 
pended wholly  upon  the  success  of  the  national  arms.  The  negroes 
were  set  free,  not  by  the  mere  declaration  of  the  President  that 
they  were  so,  but  by  force  of  arms.  Hence,  I have  always  sup- 
posed that  slaves  who  occupied  certain  sections  of  the  country,  say 
in  Virginia  and  Tennessee,  and  who  first  fell  under  the  armed  con- 
trol of  the  Union,  were  free  sooner  than  those  in  Texas  or  the  ex- 
treme South.  If  the  proclamation  of  the  President,  of  itself,  made 
slaves  free  persons,  then  every  negro  held  in  bondage  after  the  1st 
January,  1863,  is  now  entitled  to  sue  not  only  for  the  value  of  his 
services  subsequent  to  that  time,  and  for  damages  on  account  of 
being  unlawfully  deprived  of  his  liberty,  but  could  also  subject  their 
former  owners  to  criminal  prosecutions  for  false  imprisonment.  Not 
believing  that  such  an  effect  should  be,  or  was  intended  to  be  given 
to  the  Proclamation,  I must  sustain  the  demurrer  of  the  plaintiff.” 
Connett  v.  Williams,  United  States  Circuit  Court  (Texas),  Jan.  T., 
1866,  by  Judge  Thomas  H.  Duval.  There  have  been  State  decis- 
ions to  the  effect  that  contracts  made  for  the  purchase  of  negroes, 
even  before  the  war,  but  which  matured  after  their  emancipation, 
cannot  be  enforced ; but  the  editor  has  not  preserved  the  news- 
paper reports  of  them.  He  supposes  the  correct  principle  to  be,  as 
stated  by  the  Einglish  bench,  “ Who  owned  the  negroes  when  they 
obtained  their  freedom?”  If  they  were  property  when  sold,  the 
purchaser  must  sustain  the  loss. 

[Concurrent  Resolution,  received  at  Department  of  State 
June  16,  1866.] 

JOINT  RESOLUTION  PROPOSING  AN  AMENDMENT  TO 
THE  CONSTITUTION  OF  THE  UNITED  STATES. 

Be  it  resolved  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress 
assembled  (two-thirds  of  both  Houses  concurring) 


Art.  XIV.] 


RECONSTRUCTION. 


279 


That  the  following  article  be  proposed  to  the  legis-  6,  is,  220. 
latures  of  the  several  States  as  an  amendment  to  the  500-505. 
Constitution  of  the  United  States,  which,  when  ratified 
by  three-fourths  of  said  legislatures,  shall  be  valid  as 
part  of  the  Constitution,  namely : 

Article  XIV. 

Sec.  1.  All  persons  born  or  naturalized  in  the  United  500. 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce  503- 
any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States ; nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  504. 
without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  How  are 
the  several  States  according  to  their  respective  u^rappor- 
numbers,  counting  the  whole  number  of  persons  in  each  21-24  ? 
State,  excluding  Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors  509I 
for  President  and  Vice-President  of  the  United  States, 
representatives  in  Congress,  the  executive  and  judicial 
officers  of  a State,  or  the  members  of  the  legislature  508. 
thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State,  being  twenty-one  years  of  age,  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion  or  other  crime,  the  basis  How  is  the 
of  representation  therein  shall  be  reduced  in  the  pro- reduced? 
portion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Sec.  3.  No  person  shall  be  a senator  or  repre- who  are  dis- 
sentative  in  Congress,  or  elector  of  President  and  Vice- from  hold- 
President,  or  hold  any  office,  civil  or  military,  under ing  office? 
the  United  States,  or  under  any  State,  who,  having 


280  PUBLIC  DEBT  GUARANTEED,  275.  [Amendments, 


510-512 


How  re- 
stored ? 


How  is  the 
public  debt 
guaran- 
teed? 


The  rebel 
debt,  how 
repudiated  ? 


previously  taken  an  oath,  as  a member  of  Congress,  or 
as  any  officer  of  the  United  States,  or  as  a member  of 
any  State  legislature,  or  as  an  executive  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a vote  of 
two-thirds  of  each  House,  remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obliga- 
tion incurred  in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss  or  emanci- 
pation of  any  slave ; but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 


275.  This  amendment  was  never  submitted  to  the  President  for 
236.  his  approval  or  veto.  In  a message  to  Congress,  he  said,  that  the 
sending  it  to  the  States  was  not  to  be  construed  into  an  approval 
of  its  provisions.  Nevertheless,  it  was  sent  by  the  Secretary  of 
State  to  all  the  States. 

In  a letter  of  transmission  to  the  editor,  on  the  29th  October, 
1867,  the  Secretary  of  State  remarks:  “I  also  send  an  accurate 

copy  (of  the  fourteenth  amendment)  as  proposed  by  Congress ; but 
as  this  amendment  has  not  yet  been  ratified  by  a sufficient  number 
of  the  States,  through  their  legislatures,  agreeably  to  the  require- 
ments of  the  Constitution,  it  is  not  deemed  expedient  in  this  case 
to  promulgate  any  official  data  in  relation  thereto.” 

Application  was  then  made  to  the  clerk  of  the  House  of  Repre- 
sentatives who  politely  furnished  the  following:— 

Dates  of  the  ratification  of  the  XIVth  constitutional  amendment. 
1866:  Connecticut,  June  30  ; New  Hampshire,  July  7 ; Tennessee, 
July  19  ; New  Jersey,  September  11 ; Oregon,  September  19  ; Ver- 
mont, November  7.  1867  : New  York,  January  10;  Ohio,  January 

11  (withdrawn  Jan.  1868);  Nevada,  January  11  and  22;  Illinois, 
January  15;  West  Virginia,  January  16;  Kansas,  January  18; 
Missouri,  January  26;  Indiana,  January  29;  Minnesota,  Febru 
aryl;  Rhode  Island,  February  7;  Pennsylvania,  February  13; 


Art.  XIV.] 


RATIFICATION,  275,  276. 


281 


Wisconsin,  February  13  ; Michigan,  February  15  , Massachusetts,  Has  been 
March  15  and  20;  Nebraska,  June  15.  Rejected  by  Delaware,  ratified. 
Maryland,  Kentucky,  Virginia,  North  Carolina,  South  Carolina, 

Georgia,  Florida,  Alabama,  Louisiana,  Mississippi,  Arkansas, 

Texas.  Not  acted : California,  Iowa. 

Ratified  by  22  States  ; rejected  by  13  ; not  acted  on  by  2.  When 
submitted  there  were  36  States  ; Nebraska  added,  makes  37.  Three- 
fourths  of  all  were  21,  now  28.  If  we  deduct  the  ten  rebel  States, 

19  would  be  sufficient. 

In  the  case  of  Mississippi  v.  Johnson,  4 Wall.  475,  it  was 
sought  to  enjoin  the  operation  of  these  laws  upon  the  ground  of 
their  unconstitutionality.  The  arguments  are  fully  reported  ; but 
the  court  limited  the  inquiry  to  the  single  point,  Can  the  President 
be  restrained  by  injunction  from  carrying  into  effect  an  act  of 
Congress  alleged  to  be  unconstitutional  ? After  reviewing  Mar- 
bury  v.  Madison,  1 Cr.  137,  and  Kendall  v.  Stockton  & Stokes, 

12  Pet.  527,  it  was  said  : “ The  Congress  is  the  legislative  depart- igs. 
ment  of  the  government ; the  President  is  the  executive  depart-  195 
ment.  Neither  can  be  restrained  in  its  action  by  the  judicial 
department;  though  the  acts  of  both,  when  performed,  are,  in 
proper  cases,  subject  to  its  cognizance.”  Mississippi  v.  Johnson, 

4 Wall.  500.  The  rule  was  denied.  Id.  501. 

There  are  many  persons  whose  opinions  are  entitled  to  respect,  286. 
who  maintain  that  the  ratification  is  complete  without  the  concur- 
rence of  the  non-reconstructed  States.  (See  Farrar’s  Const.  § 448, 
note  1.)  If  this  view  be  correct,  then  the  ratification  is  already 
accomplished,  and  the  fourteenth  amendment  stands  as  a part  of 
the  Constitution.  But  if  it  be  not  correct,  the  editor  doubts  not 
that  the  amendment  will  be  adopted  within  the  present  year,  by 
enough  of  those  ten  States  ( unless  prevented  by  civil  war),  to  insure 
its  ratification,  after  the  same  manner  that  the  thirteenth  amend-  274. 
ment  was  ratified.  It  has  therefore  been  printed,  to  prevent  future 
confusion,  in  the  index,  and  stereotyped  pages.  Should  it  never  go 
into  practical  operation,  the  constitutional  student  will  reject  the 
propositions  which  it  embraces.  It  has  been  seen  that  the  Secre- 
tary of  State  discards  the  notion  that  the  amendment  is  yet  com- 
plete. It  is  also  painfully  true,  that  in  a message  to  the  Senate, 
and  in  other  public  declarations,  the  President  questioned  the  ex-  286. 
pediency,  if  he  did  not  deny  the  power  of  Congress  to  submit  this 
amendment,  while  a portion  of  the  States  were  not  represented 
and  allowed  to  vote  upon  such  submission.  But  this  argument  271. 
would  also  go  to  the  thirteenth  amendment,  unless,  indeed,  there  117, 118. 
be  a distinction  between  the  rights  of  States  of  the  Union,  when 
engaged  in  actual  war  against  the  United  States,  and  after  that  46. 
resistance  has  been  conquered  and  such  rebellious  peoples  have 
sent  back  their  representatives  to  Congress. 

276.  It  has  been  seen  that  the  President  imposed  upon  these 
same  States  the  condition  of  adopting  the  thirteenth  amendment, 
and  thus  forever  destroyed  slavery  within  the  jurisdiction  of  the  274. 
United  States.  This  was  claimed  in  virtue  of  the  war  power,  and 
for  the  general  welfare  of  the  whole  Union.  The  thing  has  been  11,  79,  80. 
done,  and  the  complete  change  of  organic  law  has  gone  into  history. 

23 


282  REBEL  STATES,  276.  [Am’ts,  Art.  XIY., 

The  country  accepted  the  act,  and  there  were  those  who  thought 
this  enough  But  Congress,  adopting  the  view  that  further 
286.  amendments  were  necessary ; and,  either  holding  that  the  ratifi- 
cation of  three-fourths  of  all  the  States  was  required ; or  else 
wishing  to  test  the  fact,  that  these  States  so  lately  in  rebellion, 
had  given  evidence  of  loyalty  and  submission,  and  claiming  for 
Congress  the  power  to  impose  further  conditions  than  the  Presi- 
dent had  demanded,  with  a view  to  secure  liberty  and  equal 
political  rights  to  all,  and  to  compel  those  States  to  ratify  the 
amendment,  enacted  the  following  series  of  laws : — 


Act  of 
March  2, 
1867. 

Preamble  ? 


How  are 
certain  rebel 


divided 
and  subject 
ed  to 
military 
authority  ? 

Is  the 
President 
to  assign  an 
arrnv  officer 


“ An  Act  to  provide  for  the  more  efficient  Government  of  the  Rebel 

States. 

“ Whereas  no  legal  State  governments  or  adequate  protection  for 
life  or  property  now  exists  in  the  rebel  States  of  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Mississippi,  Alabama,  Louisi- 
ana, Florida,  Texas,  and  Arkansas;  and  whereas  it  is  necessary 
that  peace  and  good  order  should  be  enforced  in  said  States,  until 
loyal  and  republican  State  governments  can  be  legally  established ; 
therefore, 

“ Be  it  enacted , dec.,  That  said  rebel  States  shall  be  divided  into 
States  to  be  military  districts,  and  made  subject  to  the  military  authority  of 
the  United  States  as  hereinafter  prescribed,  and  for  that  purpose 
Virginia  shall  constitute  the  first  district;  North  Carolina  and 
South  Carolina,  the  second  district;  Georgia,  Alabama,  and 
Florida,  the  third  district;  Mississippi  and  Arkansas,  the  fourth 
district ; and  Louisiana  and  Texas,  the  fifth  district. 

“ 2.  It  shall  be  the  duty  of  the  President  to  assign  to  the  com- 
mand of  each  of  said  districts,  an  officer  of  the  army,  not  below  the 
to  command  rank  of  brigadier-general,  and  to  detail  a sufficient  military  force 
each  dis-  £0  enable  such  officer  to  perform  his  duties,  and  enforce  his 
authority  within  the  district  to  which  he  is  assigned. 

“ 3.  It  shall  be  the  duty  of  each  officer  assigned  as  aforesaid,  to 
protect  all  persons  in  their  rights  of  person  and  property,  to  sup- 
press insurrection,  disorder,  and  violence,  and  to  punish,  or  cause  to 
of  command- be  punished,  all  disturbers  of  the  public  peace  and  criminals;  and 
to  this  end  he  may  allow  local  civil  tribunals  to  take  jurisdiction 
of  and  to  try  offenders,  or,  when  in  his  judgment  it  may  be  neces- 
sary for  the  trial  of  offenders,  he  shall  have  power  to  organize 
military  commissions  or  tribunals  for  that  purpose,  and  all  inter- 
ference under  color  of  State  authority  with  the  exercise  of  military 
authority  under  this  act,  shall  be  null  and  void. 

‘*4.  All  persons  put  under  military  arrest  by  virtue  of  this  act 
shall  be  tried  without  unnecessary  delay,  and  no  cruel  or  unusual 
punishment  shall  be  inflicted,  and  no  sentence  of  any  military  com- 
mission or  tribunal  hereby  authorized,  affecting  the  life  or  liberty 
of  any  person,  shall  be  executed  until  it  is  approved  by  the  officer 
in  command  of  the  district,  and  the  laws  and  regulations  for  the 
government  of  the  army  shall  not  be  affected  by  this  act,  except  iu 
sentences  of  s0  far  as  they  conflict  with  its  provisions  : Provided , That  no  sen- 
tribunals  to  tence  of  death  under  the  provisions  of  this  act  shall  be  carried  irto 
u executed?  effect  without  the  approval  of  the  President. 


trict  ? 
Military 
force  to  be 
detailed? 
What  are 
the  duties 


ers  of 
districts? 
Local  civil 
tribunals  ? 
State  inter- 
ference de- 
clared null  ? 
Persons 
under 
military 
arrest  to  be 
speedily 
tried  ? 

What  rule 
of  punish- 
ment? 

How  are 


Secs.  1-5.] 


TEEMS  OF  ADMISSION,  286. 


283 


“5.  When  the  people  of  any  one  of  said  rebel  States  shall  have  Upon  what 
formed  a constitution  of  government  in  conformity  with  the  Con- 
♦ stitution  of  the  United  States  in  all  respects,  framed  by  a conven-  entitled  to 
tion  of  delegates  elected  by  the  male  citizens  of  said  State,  twenty-  representa- 
one  years  old  and  upward,  of  whatever  race,  color,  or  previous  con- 
dition,  who  have  been  resident  in  said  State  for  one  year  previous  Delegates’ to 
to  the  day  of  sitch  election,  except  such  as  may  be  disfranchised  conventions, 
for  participation  in  the  rebellion,  or  for  felony  at  common  law,  and  by  whom 
when  such  Constitution  shall  provide  that  the  elective  franchise  ^hat  is  the 
shall  be  enjoyed  by  all  such  persons  as  have  the  qualifications  elective 
herein  stated  for  electors  of  delegates,  and  when  such  Con- franchise? 
stitution  shall  be  ratified  by  a majority  of  the  persons  voting 
on  the  question  of  ratification  who  are  qualified  as  electors 
for  delegates,  and  when  such  Constitution  shall  have  been 
submitted  to  Congress  for  examination  and  approval,  and  Congress 
shall  have  approved  the  same,  and  when  said  State,  by  a vote  of  The  State  to 
its  legislature  elected  under  said  Constitution,  shall  have  adopted  adopt  the 
the  amendment  to  the  Constitution  of  the  United  States,  proposed  t™the  Con- 
by  the  Thirty-ninth  Congress,  and  known  as  article  fourteen,  and  stitution? 
when  said  article  shall  have  become  a part  of  the  Constitution 
of  the  United  States,  said  State  shall  be  declared  entitled  to  repre- 
sentation in  Congress,  and  senators  and  representatives  shall  be 
admitted  ^herefrom  on  their  taking  the  oath  prescribed  by  law,  and  What  quali- 
then  and  thereafter  the  preceding  sections  of  this  act  shall  be  in-  ^cations  of 

sDnfLLors  and 

•operative  in  said  State  : Provided , That  no  person  excluded  from  representa- 
tive privilege  of  holding  office  by  said  proposed  amendment  to  the  tives  ? 
Constitution  of  the  United  States,  shall  be  eligible  to  election  as  a 
member  of  the  convention  to  frame  a Constitution  for  any  of  said 
rebel  States,  nor  shall  any  such  person  vote  for  members  of  such 
convention. 

“6.  Until  the  people  of  said  rebel  States  shall  be  by  law  admit-  What  are 
ted  to  representation  in  the  Congress  of  the  United  States,  any  civil tbe  civil 
governments  which  may  exist  therein  shall  be  deemed  provisional  ^entffof 
only,  and  in  all  respects  subject  to  the  paramount  authority  of  the  such  States? 
United  States  at  any  time  to  abolish,  modify,  control,  or  supersede  Who  may 
the  same ; and  in  all  elections  to  any  office  under  such  provisional  Actions? 
governments  all  persons  shall  be  entitled  to  vote,  and  none  others, 
who  are  entitled  to  vote,  under  the  provisions  of  the  fifth  section 
of  this  act ; and  no  person  shall  be  eligible  to  any  office  under  any 
such  provisional  governments  who  would  be  disqualified  from 
holding  office  under  the  provisions  of  the  third  article  of  said 
constitutional  amendment.” 

This  act  was  passed  over  the  President’s  veto,  March  2,  186V. 

“ An  Act  supplementary  to  an  act  entitled  c An  act  to  provide  for  Act  of 
the  more  efficient  government  of  the  rebel  States,’  passed  March  March  28, 
second,  eighteen  hundred  and  sixty-seven,  and  to  facilitate 
restoration. 

“ Be  it  enacted , <fcc.,  That  before  the  first  day  of  September,  eighteen 
hundred  and  sixty-seven,  the  commanding  general  in  each  district 
defined  by  an  act  entitled  ‘ An  act  to  provide  for  the  more  efficient  wk°  are 
government  of  the  rebel  States,’  passed  March  second,  eighteen ^ereglsteret 
hundred  and  sixty-seven,  shall  cause  a registration  to  be  made  of  as  voters  ? 


284 


SUPPLEMENTARY  ACT,  276.  [Am’ts,  Art.  XIV., 


Oath. 


What  oath 
of  the 
voters  ? 


282. 


242. 


When  and 
by  whose 
order  is  the 
election  to 
be  held  ? 


How  to  vote 
for  or 
against  a 
convention  ? 


the  male  citizens  of  the  United  States,  twenty-one  years  of  age  and 
upwards,  resident  in  each  county  or  parish  in  the  State  or  States 
included  in  his  district,  which  registration  shall  include  only  those 
persons  who  are  qualified  to  vote  for  delegates  by  the  act  aforesaid, 
and  who  shall  have  taken  and  subscribed  the  following  oath  or 

affirmation : ‘ I, , do  solemnly  swear  (or  affirm),  in  the  presence 

of  Almighty  God,  that  I am  a citizen  of  the  State  of ; that  I have 

resided  in  said  State  for months  next  preceding  this  day,  and 

now  reside  in  the  county  of  , or  the  parish  of  , in  said 

State  (as  the  case  may  be);  that  I am  twenty-one  years  old;  that 
I have  not  been  disfranchised  for  participation  in  any  rebellion  or 
civil  war  against  the  United  States,  nor  for  felony  committed  against 
the  laws  of  any  State  or  of  the  United  States;  that  I have  never 
been  a member  of  any  State  legislature,  nor  held  any  executive  or 
judicial  office  in  any  State  and  afterward  engaged  in  insurrection  or 
rebellion  against  the  United  States,  or  given  aid  or  comfort  to  the 
enemies  thereof ; that  I have  never  taken  an  oath  as  a member  of 
Congress  of  the  United  States,  or  as  an  officer  of  the  United  States, 
or  as  a member  of  any  State  legislature,  or  as  an  executive  or  judi- 
cial officer  of  any  State,  to  support  the  Constitution  of  the  United 
States,  and  afterward  engaged  in  insurrection  or  rebellion  against 
the  United  States,  or  given  aid  or  comfort  to  the  enemies  thereof ; 
that  I will  faithfully  support  the  Constitution  and  obey  the  laws  of 
the  United  States,  and  will,  to  the  best  of  my  ability,  encourage 
others  so  to  do,  so  help  me  God;’  which  oath  or  affirmation  may  be 
administered  by  any  registering  officer. 

“ 2.  After  the  completion  of  the  registration  hereby  provided 
for  in  any  State,  at  such  time  and  places  therein  as  the  commanding 
general  shall  appoint  and  direct,  of  which  at  least  thirty  days’  pub- 
lic notice  shall  be  given,  an  election  shall  be  held  of  [for]  delegates 
to  a convention  for  the  purpose  of  establishing  a Constitution  and 
civil  government  for  such  State  loyal  to  the  Union,  said  convention 
in  each  State,  except  Yirginia,  to  consist  of  the  same  number  of 
members  as  the  most  numerous  branch  of  the  State  legislature  of 
such  State  in  the  year  eighteen  hundred  and  sixty,  to  be  appor- 
tioned among  the  several  districts,  counties,  or  parishes  of  such 
State  by  the  commanding  general,  giving  to  each  representation  in 
the  ratio  of  voters  registered  as  aforesaid  as  nearly  as  may  be.  The 
convention  in  Yirginia  shall  consist  of  the  same  number  of  mem- 
bers as  represented  the  territory  now  constituting  Yirginia  in  the 
most  numerous  branch  of  the  legislature  of  said  State  in  the  year 
eighteen  hundred  and  sixty,  to  be  apportioned  as  aforesaid. 

“3.  At  said  election  the  registered  voters  of  each  State  shall 
vote  for  or  against  a convention  to  form  a Constitution  therefor  un- 
der this  act.  Those  voting  in  favor  of  such  a convention  shall  have 
written  or  printed  on  the  ballots  by  which  they  vote  for  delegates,  as 
aforesaid,  the  words  ‘ For  a convention ;’  and  those  voting  against 
such  a convention  shall  have  written  or  printed  on  such  ballots  the 
words  ‘ Against  a convention.’  The  persons  appointed  to  superintend 
said  election,  and  to  make  return  of  the  votes  given  thereat,  as 
herein  provided,  shall  count  and  make  return  of  the  votes  <?iven  for 
and  against  a convention;  and  the  commanding  genera)  to  whom 
the  same  shall  have  been  returned  shall  ascertain  and  d elare  the 


Secs.  1-5.]  BOARDS  OF  REGISTRATION,  276. 


285 


total  vote  in  each  State  for  and  against  a convention.  If  a majority  Vote, 
of  the  votes  given  on  that  question  shall  be  for  a convention,  then 
such  convention  shall  be  held  as  hereinafter  provided ; but  if  a ma- 
jority of  said  votes  shall  be  against  a convention,  then  no  such  con- 
vention shall  be  held  under  this  act:  Provided , That  such  convention 
shall  not  be  held  unless  a majority  of  all  such  registered  voters  shall 
have  voted  on  the  question  of  holding  such  convention. 

“ 4.  The  Commanding  general  of  each  district  shall  appoint  as  How  are 
many  boards  of  registration  as  may  be  necessary,  consisting  of  hoards  of 
three  loyal  officers  or  persons,  to  make  and  complete  the  regis-  to^bf  ap-00 
tration,  superintend  the  election,  and  make  return  to  him  of  the  pointed? 
votes,  list  of  voters,  and  of  the  persons  elected  as  delegates  by  a 
plurality  of  the  votes  cast  at  said  election  ; and  upon  receiving  said 
returns  he  shall  open  the  same,  ascertain  the  persons  elected  as 
delegates,  according  to  the  returns  of  the  officers  who  conducted 
said  election,  and  make  proclamation  thereof ; and  if  a majority  of 
the  votes  given  on  that  question  shall  be  for  a convention,  the  com- 
manding general,  within  sixty  days  from  the  date  of  election,  shall 
notify  the  delegates  to  assemble  in  convention,  at  a time  and  place 
to  be  mentioned  in  the  notification,  and  said  convention,  when 
organized,  shall  proceed  to  frame  a Constitution  and  civil  govern- 
ment according  to  the  provisions  of  this  act,  and  the  act  to  which 
it  is  supplemental  ; and  when  the  same  shall  have  been  so  framed, 
said  Constitution  shall  be  submitted  by  the  convention  for  ratification 
to  the  persons  registered  under  the  provisions  of  this  act  at  an 
election  to  be  conducted  by  the  officers  or  persons  appointed,  or  to 
be  appointed,  by  the  commanding  general,  as  hereinbefore  pro- 
vided, and  to  be  held  after  the  expiration  of  thirty  days  from  the 
date  of  notice  thereof,  to  be  given  by  said  convention;  and  the 
returns  thereof  shall  be  made  to  the  commanding  general  of  the 
district. 

u 5.  If,  according  to  said  returns,  the  Constitution  shall  be  ratified  What  to  be 
by  a majority  of  the  votes  of  fhe  registered  electors  qualified  as  done  with 
herein  specified,  cast  at  said  election,  at  least  one-half  of  all  the  tution?6**" 
registered  voters  voting  upon  the  question  of  such  ratification,  the 
president  of  the  convention  shall  transmit  a copy  of  the  same,  duly 
certified,  to  the  President  of  the  United  States,  who  shall  forthwith 
transmit  the  same  to  Congress,  if  then  in  session,  and  if  not  in 
session,  then  immediately  upon  its  next  assembling;  and  if  it  shall 
moreover  appear  to  Congress  that  the  election  was  one  at  which  all 
the  registered  and  qualified  electors  in  the  State  had  an  opportunity 
to  vote  freely  and  without  restraint,  fear,  or  the  influence  of  fraud,  Jjf 
and  if  the  Congress  shall  be  satisfied  that  such  Constitution  meets 
the  approval  of  a majority  of  all  the  qualified  electors  in  the  State, 
and  if  the  said  Constitution  shall  be  declared  by  Congress  to  be  in 
conformity  with  the  provisions  of  the  act  to  which  this  is  supple- 
mentary, and  the  other  provisions  of  said  act  shall  have  been  com- 
plied with,  and  the  said  Constitution  shall  be  approved  by  Congress, 
the  State  shall  be  declared  entitled  to  representation,  and  senators 
and  representatives  shall  be  admitted  therefrom  as  therein  provided. 

“ 6.  All  elections  in  the  States  mentioned  in  the  said  ‘ Act  to  the^votes  to 
provide  for  the  more  efficient  government  of  the  rebel  States.’  shall,  be  cast? 


/ 


\ 


2S6 


Ballot. 


What,  is  the 
penalty  of 
false 

swearing  ? 


How  are 
the  expen- 
ses to  be 
paid  ? 

How  are 
the  salaries 
&c.,  to  be 
paid  ? 


Act  of  July 
1$,  1867. 


"What  are 
the  govern- 
ments of 
the  States 
declared 
to  be? 


it 


"What  is  the 
power  of 
removal  ? 


2d  SUPPLEMENTARY  ACT,  276.  [Art.  XIV., 

during  the  operation  of  said  act.  he  by  ballot ; and  all  officers 
making  the  said  registration  of  voters  and  conducting  said  elections 
shall,  before  entering  upon  the  discharge  of  their  duties,  take  and 
subscribe  the  oath  prescribed  by  the  act  approved  July  second, 
eighteen  hundred  and  sixty-two,  entitled  1 An  act  to  prescribe  an 
oath  of  office:’  Provided , That  if  any  person  shall  knowingly  and 
falsely  take  and  subscribe  any  oath  in  this  act  prescribed,  such 
person  so  offending,  and  being  thereof  duly  convicted,  shall  be  sub- 
ject to  the  pains,  penalties,  and  disabilities  which  by  law  are  pro- 
vided for  the  punishment  of  the  crime  of  willful  and  corrupt  perjury. 

“ 7.  All  expenses  incurred  by  the  several  commanding  generals, 
or  by  virtue  of  any  orders  issued,  or  appointments  made,  by  them, 
under  or  by  virtue  of  this  act,  shall  be  paid  out  of  any  moneys  in 
the  treasury  not  otherwise  appropriated. 

“8.  The  convention  for  each  State  shall  prescribe  the  fees,  salary, 
and  compensation  to  be  paid  to  all  delegates  and  other  officers  and 
agents  herein  authorized  or  necessary  to  carry  into  effect  the  pur- 
poses of  this  act  not  herein  otherwise  provided  for  and  shall  pro- 
vide for  the  levy  and  collection  of  such  taxes  on  the  property  in 
such  State  as  may  be  necessary  to  pay  the  same. 

“ 9.  The  word  ‘ article,’  in  the  sixth  section  of  the  act  to  which 
this  is  supplementary,  shall  be  construed  to  mean  ‘ section.’  ” 
Passed  over  the  President’s  veto,  March  23,  1867. 

“ An  Act  supplementary  to  an  act  entitled  ‘ An  act  to  provide  for 
the  more  efficient  government  of  the  rebel  States,’  passed  on 
the  second  day  of  March,  eighteen  hundred  and  sixty-seven,  and 
the  act  supplementary  thereto,  passed  on  the  twenty-third  day 
of  March,  eighteen  hundred  and  sixty-seven. 

“ Be  it  enacted,  &c.,  That  it  is  hereby  declared  to  have  been  the 
true  intent  and  meaning  of  the  act  of  the  second  day  of  March, 
one  thousand  eight  hundred  and  sixty-seven,  entitled  ‘An  act  to 
provide  for  the  more  efficient  go^'nment  of  the  rebel  States,’ 
and  of  the  act  supplementary  thereto,  passed  on  the  twenty-third 
day  of  March,  in  the  year  one  thousand  eight  hundred  and  sixty- 
seven,  that  the  governments  then  existing  in  the  rebel  States  of 
Virginia,  North  Carolina,  South  Carolina,  Georgia,  Mississippi,  Ala- 
bama, Louisiana,  Florida,  Texas,  and  Arkansas  were  not  legal 
State  governments ; and  that  thereafter  said  governments,  if  con- 
tinued, were  to  be  continued  subject  in  all  respects  to  the  military 
commanders  of  the  respective  districts,  and  to  the  paramount  au- 
thority of  Congress. 

“ 2.  The  commander  of  any  district  named  in  said  act  shall 
have  power,  subject  to  the  disapproval  of  the  general  of  the 
army  of  the  United  States,  and  to  have  effect  till  disapproved, 
whenever  in  the  opinion  of  such  commander  the  proper  adminis- 
tration of  said  act  shall  require  it,  to  suspend  or  remove  from 
office,  or  from  the  performance  of  official  duties  and  the  exercise 
of  official  powers,  any  officer  or  person  holding  or  exercising,  or 
professing  to  hold  or  exercise,  any  civil  or  military  office  or  duty 
in  such  district,  under  any  power,  election,  appointment  or  authori- 
ty derived  from,  or  granted  by,  or  claimed  under,  any  so-called 


Secs.  1-5.] 


REGISTRATION,  276. 


287 


State  or  the  government  thereof,  or  any  municipal  or  other  division  State, 
thereof,  and  upon  such  suspension  or  removal,  such  commander, 
subject  to  the  disapproval  of  the  general  as  aforesaid,  shall  have 
power  to  provide  from  time  to  time  for  the  performance  of  the 
said  duties  of  such  officer  or  person  so  suspended  or  removed,  by 
the  detail  of  some  competent  officer  or  soldier  of  the  army,  or  by 
the  appointment  of  some  other  person,  to  perform  the  same,  and 
to  fill  vacancies  occasioned  by  death,  resignation,  or  otherwise. 

**  3.  The  general  of  the  army  of  the  United  States  shall  be  in-  what  are 
vested  with  all  the  powers  of  suspension  removal,  appointment,  the  powers 
and  detail  granted  in  the  preceding  section  to  district  commanders.  Qe^®a]  as 

u 4.  The  acts  of  the  officers  of  the  army  already  done  in  remov-  to  removals? 
ing  in  said  districts  persons  exercising  the  functions  of  civil  offi- 
cers, and  appointing  others  in  their  stead,  are  hereby  confirmed : 

Provided,  That  any  person  heretofore  or  hereafter  appointed  by 
any  district  commander  to  exercise  the  functions  of  any  civil  office, 
may  be  removed  either  by  the  military  officer  in  command  of  the 
district,  or  by  the  general  of  the  army.  And  it  shall  be  the  duty 
of  such  commander  to  remove  from  office  as  aforesaid  all  persons 
who  are  disloyal  to  the  government  of  the  United  States,  or  who 
use  their  official  influence  in  any  manner  to  hinder,  delay,  prevent, 
or  obstruct  the  due  and  proper  administration  of  this  act  and  the 
acts  to  which  it  is  supplementary. 

“5.  The  boards  of  registration  provided  for  in  the  act  entitled  W hat  are 
‘ An  act  supplementary  to  an  act  entitled  u An  act  to  provide  for  °/ 

the  more  efficient  government  of  the  rebel  States,”  passed  March  Je|iStration  ? 
two,  eighteen  hundred  and  sixty-seven,  and  to  facilitate  restora- 
tion,’ passed  March  twenty -three,  eighteen  hundred  and  sixty- 
seven,  shall  have  power,  and  it  shall  be  their  duty,  before  allow- 
ing the  registration  of  any  person,  to  ascertain,  upon  such  facts 
or  information  as  they  can  obtain,  whether  such  person  is  entitled 
to  be  registered  under  said  act;  and  the  oath  required  by  said  act 
shall  not  be  conclusive  on  such  question,  and  no  person  shall  be 
registered  unless  such  board  shall  decide  that  he  is  entitled  thereto ; 
and  such  board  shall  also  have  power  to  examine,  under  oath  (to 
be  administered  by  any  member  of  such  board),  any  one  touching 
the  qualification  of  any  person  claiming  registration  ; but  in  every 
case  of  refusal  by  the  board  to  register  an  applicant,  and  in  every 
case  of  striking  his  name  from  the  list  as  hereinafter  provided,  the 
board  shall  make  a note  or  memorandum,  which  shall  be  returned 
with  the  registration  list  to  the  commanding  general  of  the  district 
setting  forth  the  grounds  of  such  refusal  or  such  striking  from  the 
list : Provided,  That  no  person  shall  be  disqualified  as  member  of 

any  board  of  registration  by  reason  of  race  or  color. 

“ 6.  The  true  intent  and  meaning  of  the  oath  prescribed  in  said  What  is  the 
supplementary  act  is  (among  other  things),  that  no  person  who  has  extent  of  the 
been  a member  of  the  legislature  of  any  State,  or  who  has  held  tion  ?a  1 °a" 
any  executive  or  judicial  office  in  any  State,  whether  he  has  taken 
an  oath  to  support  the  Constitution  of  the  United  States  or  not, 
and  whether  he  was  holding  such  office  at  the  commencement  of 
the  rebellion,  or  had  held  it  before,  and  who  has  afterwards  en- 
gaged in  insurrection  or  rebellion  against  the  United  States,  or 


288 


REGISTRATION,  276,  277. 


[Art.  XIV., 


To  what 
time  is  tne 
registration 
extended  ? 


What  are 
the  powers 
of  the 
command- 
ing general  ? 

What  oath  is 
required  of 
the  board  ? 


By  whose 

opinions 

are  the 

district 

commanders 

bound? 


What  meant 
the  second 
section  of 
the  amend- 
ment? 


given  aid  or  comfort  to  the  enemies  thereof,  is  entitled  to  be  regis- 
tered or  to  vote ; and  the  words  ‘ executive  or  judicial  office  in 
any  State  ’ in  said  oath  mentioned  shall  be  construed  to  include  all 
civil  offices  created  by  law  for  the  administration  of  any  general 
law  of  a State,  or  for  the  administration  of  justice. 

“7.  The  time  for  completing  the  original  registration  provided  for 
in  said  act  may,  in  the  discretion  of  the  commander  of  any  district, 
be  extended  to  the  first  day  of  October,  eighteen  hundred  and 
sixty-seven  , and  the  boards  of  registration  shall  have  power,  and 
it  shall  be  their  duty,  commencing  fourteen  days  prior  to  any  elec- 
tion under  said  act,  and  upon  reasonable  public  notice  of  the  time 
and  place  thereof,  to  revise,  for  a period  of  five  days,  the  registra- 
tion lists,  and  upon  being  satisfied  that  any  person  not  entitled 
thereto  has  been  registered,  to  strike  the  name  of  such  person 
from  the  list,  and  such  person  shall  not  be  allowed  to  vote.  And 
such  board  shall  also,  during  the  same  period,  add  to  such  registry 
the  names  of  all  persons  who  at  that  same  time  possess  the  qualifi- 
cations required  by  said  act  who  have  not  been  already  registered ; 
and  no  person  shall,  at  any  time,  be  entitled  to  be  registered,  or  to 
vote,  by  reason  of  any  executive  pardon  or  amnesty,  for  any  act  or 
thing  which,  without  such  pardon  or  amnesty,  would  disqualify 
him  from  registration  or  voting. 

“ 8.  Section  four  of  said  last-named  act  shall  be  construed  to 
authorize  the  commanding  general  named  therein,  whenever  he 
shall  deem  it  needful,  to  remove  any  member  of  a board  of  regis- 
tration, and  to  appoint  another  in  his  stead,  and  to  fill  any  vacancy 
in  such  board. 

“ 9.  All  members  of  said  boards  of  registration  and  all  persons 
hereafter  elected  or  appointed  to  office  in  said  military  districts, 
under  any  so-called  State  or  municipal  authority,  or  by  detail  or 
appointment  of  the  district  commanders,  shall  be  required  to  take 
and  to  subscribe  the  oath  of  office  prescribed  by  law  for  officers  of 
the  United  States. 

“ 10.  No  district  commander  or  member  of  the  board  of  registra- 
tion, or  any  of  the  officers  or  appointees  acting  under  them,  shall 
be  bound  in  his  action  by  any  opinion  of  any  civil  officer  of  the 
United  States. 

“ 11.  All  the  provisions  of  this  act,  and  of  the  acts  to  which  this 
is  supplementary,  shall  be  construed  liberally  to  the  end  that  all 
the  intents  thereof  may  be  fully  and  perfectly  carried  out.” 

Passed  over  the  President’s  veto,  19th  July,  1867. 

“Joint  Resolution  to  carry  into  effect  the  several  acts  providing 
for  the  more  efficient  government  of  the  rebel  States. 

“ Be  it  resolved,  (See.,  That,  for  the  purpose  of  carrying  into  effect 
the  above  named  acts,  there  be  appropriated,  out  of  any  money  in 
the  treasury  not  otherwise  appropriated,  the  sum  of  one  million 
dollars.” 

Passed  over  the  President’s  veto,  19th  July,  1867. 

277.  It  will  be  seen  that  the  second  section  of  the  fourteenth 
amendment  only  contemplated  the  rejection  from  the  basis  of  repre- 
sentation of  the  “numbers,”  whose  male  representative  men  should 
be  denied  the  elective  franchise.  This  applied  especially  to  the  freo 


Secs.  1-5.]  REGISTERED  VOTERS,  277,  278. 


289 


persons  of  color.  Upon  the  estimate  of.  four  and  a half  mil-  21,  23. 
lions  of  those,  very  few  of  whom  are  allowed  to  vote,  unless  the 
rule  of  suffrage  should  be  changed,  nearly  one-eighth  of  the  whole 
representation  would  have  to  be  deducted.  Nearly  all  of  this 
would,  in  fact,  fall  upon  the  late  slave  States,  and  the  greater  part 
upon  the  remaining  ten  rebel  States.  The  reconstruction  acts  ad-  What  is  the 
vance  one  step  further.  They  still  recognize  the  principle  that  the  eff®ct  of 
States  may  determine  for  themselves  who  of  their  inhabitants  may  JJJ  theg6 
vote  ; but,  as  in  the  case  of  Nebraska,  it  is  imposed  “ as  a funda-  negroes? 
mental  condition  of  admission  ” that  these  States  shall  make  no  U. 
distinction,  as  to  the  right  of  suffrage,  on  account  of  color.  While, 
then,  it  was  intended  to  enforce  the  adoption  of  the  constitutional 
amendment,  if  the  law  imposed  the  burden  of  negro  suffrage,  it 
also  secured  to  the  unwilliug  whites  the  benefit  of  the  increased 
representation  which  would  have  been  lost  without  this  principle. 

While  the  means  adopted  have  been  denounced  as  onerous,  and  the  275. 
executive  and  judicial  departments  of  the  government  have  been 
appealed  to  to  arrest  them,  the  candid  historian  will  have  to  record, 
that  the  object  of  this  legislation  has  been  to  secure  the  fourteenth 
amendment  to  the  Constitution.  And,  viewed  as  a revolution  in 
organic  law,  superinduced  by  the  mighty  events  which  preceded, 
the  friends  and  the  opponents  of  the  measure  will  have  to  be  judged,  By  what 
as  they  are  being  judged  in  regard  to  the  thirteenth  amendment, 
by  the  question  of  whether  it  was  right,  expedient  and  wise  thus  oppo- 
to  secure  the  fruits  of  the  victory  which  prevented  the  destruction  nents  have 
of  the  Union  ? If  the  end  shall  be  approved,  the  severities  of  the  to  be 
war  and  the  great  loss  of  property,  in  the  one  case,  and  the  com-  Judged  ? 
plaints  of  the  unfortunate  men,  who  fought  against  a beneficent  275. 
government,  in  the  other,  will  be  forgotten. 


278.  Under  these  laws  the  voters  registered  have  been  as  fol-  Compare  the 


lows : 

Whites. 

Alabama 72,746 

Arkansas 43,170 

Florida 11,151 

Georgia 96,262 

Louisiana 45,169 

Mississippi 47,434 

North  Carolina 103,060 

South  Carolina 46,676 

Texas 56,666 

Virginia 120,101 


Blacks. 

93,543 

23,146 

15,541 

95,973 

83,249 

62,091 

71,657 

80,714 

47,430 

105,832 


Total. 

166,289 

66,316 

26,692 

192,235 

128,418., 

109,525 

174.717 

127,390 

104,096 

225,933 


black  and 
white  vote  ? 


Aggregates 642,435 


679,176 


1,321,611 


— The  World  Almanac,  pp.  102-106. 

In  1860,  the  white  vote  of  the  same  States  was  about  652,000. 
But  it  is  estimated  that  300,000,  who  would  have  been  voters,  lost 
their  lives  by  the  civil  war.  Probably  100,000  were  either  exclu- 
ded, under  the  acts  of  Congress,  or  else  failed  to  register.  And 
yet  there  seems  to  be  a falling  off  of  less  than  10,000.  The  vote 
of  West  Virginia  is  also  to  be  deducted  from  the  vote  of  Virginia. 
The  conventions  have  been  carried  and  delegates  elected  in  all  the 


[Art.  XIV., 


290 


THE  GREAT  ISSUES,  278-281. 


Texas.  States  except  Texas.  In  that  State  an  election  has  been  ordered  to 
take  place  on  the  10th,  11th,  12th,  13th  and  14th  of  February,  1868. 

IT.  The  conventions  of  Alabama,  Virginia,  North  Carolina,  Georgia, 
Florida,  and  Arkansas  have  adopted  the  principle  of  suffrage  for 
whites  and  blacks  alike. 

The  new  Constitutions  will  he  submitted  to  the  people  for  their 
ratification ; and  a bill  has  passed  the  House  of  Representatives, 
and  may  become  a law,  to  secure  the  ratification  by  a simple  ma- 
jority of  the  votes  cast ; and  to  elect  members  of  Congress  at  the 
same  time.  Should  the  Constitutions  be  ratified,  and  State  officers 
elected  under  them,  the  contest  may  possibly  then  arise  between 
the  new  governments  thus  organized  and  the  governments  intend- 
ed to  be  superseded.  But  whatever  form  the  controversy  may 
assume,  no  candid  mind  should  ever  lose  sight  of  the  fact,  that  the 
great  issue  is,  Shall  the  fourteenth  amendment  be  ratified  by  those 
States  not  now  allowed  representation  or  not? 

What  do  the  279.  In  view  of  so  important  an  issue,  it  may  be  well  for  every 
amend-  reader  to  consider  carefully  what  this  amendment  proposes  or  has 
pose^  Pr°"  done  ? This  may  be  answered  thus  : — 

The  first?  Sec.  1.  Defines  national  citizenship,  and  thus  makes  organic 
6. 19,  25,  28,  what  had  already  been  declared  law  by  the  first  section  of  the 
oja1^169,  Civil  Rights  Bill.  Paschal’s  Annotated  Digest,  Art.  5382.  See 
2-°-w2d.  Farrar>s  Const.  § 448. 

All  else  in  this  section  has  already  been  guarantied  in  the  second 
and  fourth  sections  of  the  fourth  article;  and  in  the  thirteen  amend- 
220-225, 245-  ments.  The  new  feature  declared  is  that  the  general  principles, 
274.  which  had  been  construed  to  apply  only  to  the  national  government, 

260,  264.  are  thus  imposed  upon  the  States.  Most  of  the  States,  in  general 
terms,  had  adopted  the  same  bill  of  rights  in  their  own  constitu- 
tions. 

2§0.  The  second  section  amends  the  third  clause  of  the  second 
section  of  the  first  article,  so  as  to  make  representation  depend 
upon  voters  as  well  as  numbers.  It  thus  more  clearly  defines  who 
of  those  “ persons,”  now  “citizens,”  shall  be  counted  in  the  basis  of 
representation.  Curtailment  of  representation  will  follow  curtail- 
ment of  suffrage.  But  the  rights  of  the  States  to  determine  who 
of  their  inhabitants  shall  vote  seems  still  to  be  left  unimpaired. 

This  view,  however,  has  been  denied;  and  there  are  those  of 
great  weight,  who  claim  that  Congress  has  the  power  to  prescribe 
an  universal  rule  of  suffrage  for  all  the  States.  Putting  it  upon  the 
ground  of  a right  still  retained  by  the  States  and  people,  it  is  not 
probable  that  any  State  would  long  exclude  a large  class  of  voters 
at  the  expense  of  its  weight  of  representation  in  the  national 
assembly  and  the  electoral  college.  The  prejudice  against  caste 
would  be  overcome  by  the  necessity  for  strength. 

The  third?  2§I.  The  third  section  contains  a decree  of  exclusion  from 
offiee,  against  all,  everywhere,  and  for  the  past  as  well  as  future, 
242,  276.  who,  having  previously  taken  an  oath  as  a member  of  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any  State,  to 
1,222,  215.  8 ipport  the  Constitution  of  the  United  States,  shall  have  engaged 


The  second  ? 

21-2*,  276. 

17,18,  220, 
221. 

What  is  the 
effect  of 
curtailment 
of  suffrage  ? 
18. 

16-18. 

173,  174,  269. 


Secs.  1-5.]  disqualification-debt,  281,  282. 


291 


in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  com-  Bisqualifica- 
fort  to  the  enemies  thereof.  tlon* 

One  of  the  complaints  against  the  reconstruction  laws  has  been,  What  is  the 
that  this  same  disqualification  has  been  extended  to  the  right  to  ®?ect  ttl0 
vote  upon  all  the  measures  of  reconstruction;  and  that  so  large  a tion?  1 °a" 
class  has  thus  been  excluded  that  “ negro  supremacy  ” has  been 
established  in  all  those  ten  States.  It  is  no  part  of  this  book  to 
defend  or  denounce  any  policy.  The  truth  is,  that  the  disqualifi-  What  per 
cation  did  not  and  could  not  reach  any  voter  under  twenty-seven  centage 
years  of  age ; it  could  reach  comparatively  few  below  thirty-five ; possibly 
and  in  no  community  is  there  an  alarming  number  above  fifty  years  reach? 
of  age.  Neither  by  statistical  possibility  nor  by  count,  has  it  been 
found  fairly  to  extend  to  one-tenth  part  of  the  population.  Upon 
Attorney-General  Stanbery’s  interpretation,  one-twentieth  would  277. 
be  much  nearer  the  number.  (Opinions  upon  the  Reconstruction 
Laws,  1867.)  It  does,  however,  reach  a class;  and  the  disqualifi-  242. 
cation  would  extend  to  future  as  well  as  to  past  rebellions,  and  the 
•power  of  holding  office,  or  disability  could  only  be  removed  by  a 16-18,  220- 
two-thirds  vote  of  each  house  of  Congress.  223. 

And  as  the  country  seems  to  have  settled  down  into  the  notion,  16-19,  35, 46, 
that  the  elective  franchise  and  the  qualification  for  office  are  y3>  169-171. 
powers,  which  always  require  something  superadded  to  mere 
citizenship,  the  disqualification  as  an  organic  rule  for  the  future 
becomes  one  of  wisdom  and  sound  policy.  I say  nothing  of  the 
argument  that  it  is  a punishment  for  past  offenses  against  the  efficacy  142, 143. 
of  executive  pardon.  As  the  number  of  participants  in  past  re- 
bellions will  daily  decrease,  let  us  hope  that  the  love  of  office,  the 
very  strongest  in  the  restless,  ambitious  spirits,  who  always  con-  117 
trol  popular  sentiment,  may  render  it  almost  impossible  that  ever 
the  section  shall  extend  to  others  who  shall  hereafter  engage  in 
insurrection  or  rebellion  against  the  United  States. 

“ State  ” in  this  section  would  doubtless  be  interpreted,  as  in 
the  fugitive  clauses,  to  extend  to  the  District  of  Columbia  and  the 
Territories,  and,  indeed,  to  all  who  owed  allegiance  to  the  United  226,  215,  242. 
States,  and  had  held  an  office  within  the  category  of  those  defined. 

Aud  “person”  would  receive  the  most  comprehensive  definition. 

The  fourth  section  declares,  that  “the  validity  of  the  public  What  is  the 
debt  of  the  United  States,  authorized  by  law,  including  debts  in-  fourth 
curred  for  the  payment  of  pensions  and  bounties  for  services  in  sectlon  ? 
suppressing  insurrection  or  rebellfon  shall  not  be  questioned.” 

While  tl  3 has  been  supposed  to  relate  to  the  debt  contracted  in 
the  suppression  of  the  late  rebellion,  it  is,  in  fact,  an  organic  pledge  What  debts 
for  all  debts  contracted  in  the  past  and  for  the  future.  The  debt  is  hoes  it 
not  only  not  tfo  be  repudiated,  but  “ not  questioned.”  7™bs2 ' °e  ? 

While  so  lar^ge  a debt  is  thus  intended  to  be  secured,  the  section  What  debts 
further  stipulate  s i “ But  neither  the  United  States  nor  any  State  are  stipulat- 
shall  assume  or  pAy  any  debt  or  obligation  incurred  in  aid  of  insur-  no.t]t9° 
rection  or  rebellion  against  the  United  States,  or  any  claim  for  the  e pai 
loss  or  emancipation  of  any  slave ; but  all  such  debts,  obligations, 
and  claims  shall  be  herd  illegal  and  void.” 

The  debt  of  the  Confederate  States  could  not  have  been  less  the  probable 
than  two  thousand  millions  of  dollars;  and  the  value  of  the  slaves  amounts? 


292 


DEBT — POWER,  282-285. 


[Art.  XIV., 


Emancipa- 

tion. 


7$,  82. 


The  fifth  ? 
138. 

274. 


What  is  the 
importance 
of  the 
subject  ? 

274. 


46,  242. 


What  may 
be  the  effect 
of  the  third 
section  upon 
the  test 
oath  ? 

242. 


emancipated  exceeded  that  sum.  The  debts  ineurrred  by  States, 
counties,  corporations,  and  individuals  in  aid  of  insurrection  or  re- 
bellion against  the  United  States,  probably  amount  to  a thousand 
millions  more,  to  say  nothing  of  pensions  and  “bounties  for  ser- 
vices,” if  one  clause  of  the  article  is  to  be  consulted  in  expounding 
the  other.  The  terms  of  reconstruction  prescribed  by  President 
Johnson  required  the  States  to  repudiate  their  war  debts.  This 
has  been  done  to  a more  or  less  limited  extent  in  the  constitutions 
and  ordinances  of  the  reconstruction  conventions.  But  this  is  only 
for  the  protection  of  the  States.  Every  one  will  judge  for  himself 
of  the  influence  of  such  a debt,  combined  with  the  danger  of  having 
so  large  a national  debt  “questioned”  or  repudiated. 

The  problem  of  allowing  the  representations  from  States  with- 
drawn from  Congress  and  incurring  such  enormous  debts  of  their 
own,  while  fighting  the  United  States,  an  equal  voice  in  reference 
to  debts  incurred  by  the  nation  in  conquering  them,  is  one  of  no 
small  difficulty.  Yiewed  from  the  stand-point  of  extraneous  in- 
fluences upon  Congress,  no  one  can  now  fully  comprehend  its 
danger.  The  organic  guaranty  is  only  an  additional  security. 

283.  The  fifth  section  is  little  more  than  a repetition  of  the 
general  powers  of  legislation.  It  is  precisely  the  same  expressed 
in  the  thirteenth  amendment. 

“The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article.”  The  appropriate  legis- 
lation which  would  arise  under  this  article,  would  be  governed  by 
time  and  circumstances,  just  as  all  the  other  powers  of  Congress 
have  been. 

284.  Whether  this  constitutional  amendment  has  become,  or 
shall  become,  a part  of  the  organic  law,  as  covenant  for  the  great 
future,  is  a matter  for  the  serious  contemplation  of  the  whole 
country.  In  the  late  very  able  message  of  the  President,  he  re- 
commends Congress  to  retrace  the  measures  of  the  past.  Thi  3 
cannot  be  understood  to  recommend  the  annulment  of  the  thirteenth, 
constitutional  amendment.  He  is  very  explicit  in  opposing  tjie 
reconstruction  laws  ; and  therefore  he  may  be  construed  as  recom- 
mending the  repeal  of  the  Civil  Rights  33411,  and  opposing  this  Vhole 
fourteenth  amendment,  with  no  other  recommendation  in  its  stead 
than  to  allow  the  representation  from  the  States  elected  sjfnoe  the 
acts  of  reconstruction,  directed  by  the  President  himself/  Few  if 
any,  of  these  persons,  could  take  the  test  oath  now  required  of 
all.  But  whether  this  is  to  be  repealed  or  to  be  regarded  as  obso- 
lete, has  not  been  very  distinctly  avowed  by  those  wl/o  demand  the 
admission  of  members  from  those  States. 

285.  It  may  not  be  out  of  place  to  observe.,  that,  as  the  third 
section  disqualifies  a class  from  office,  the  prinebpie  of  indusio  unius , 
exclusio  alter  ius,  may  remove  the  disability  carded  by  the  test  oath 
as  to  all  not  in  that  section  enumerated.  If  this  be  so,  those  en- 
gaged in  the  late  rebellion  would  gain  rath  er  than  lose  by  the  adop- 
tion of  the  amendment.  Many  leaders  in  that  movement  are  not 
disqualified. 


Secs.  1-5.] 


conclusion,  285,  286. 


293 


The  question  of  what  are  the  constitutional  rights  of  men,  regard-  Eights, 
less  of  the  past,  is  always  one  of  serious  import.  Such  an  issue,  at 
such  a time,  is  well  calculated  to  awaken  the  most  painful  appre- 
hensions. The  issues  involved  are : — 1.  Does  freedom  to  the  slave  What  are 
mean  equal  liberty  to  the  citizen  ? 2.  Have  they  been  made  citi-  the  real 

zens,  and  if  so,  what  is  the  extent  of  their  rights  ? 3.  Shall  the  Solved  ? 

governments  of  the  States  lately  in  rebellion  be  left  to  those  only 
who  controlled  it ; or  shall  all  participate  regardless  of  color  or  pre-  220,  274. 
vious  condition  ? 4.  Shall  the  ratio  of  representation  remain,  thus  23>  24- 

superadding  two-fifths  to  the  slave  States  without  one-half  of  the 
citizens  having  any  greater  participation  in  the  government  than 
the  slaves  had ; or  shall  the  ratio  be  changed  so  as  to  represent 
votes  as  well  as  numbers  ? 5.  Shall  any  one  for  the  past  or  the 

future  be  disqualified  from  holding  office  because  of  participation  in 
insurrection  or  rebellion  against  the  United  States  ? 6.  Shall  there 

be  an  organic  guaranty  in  respect  to  the  national  debt ; or  shall 
there  be  such  guaranty  against  the  rebel  debt  and  the  claim  for 
slaves  ? 

See  Farrar  upon  the  Fourteenth  Amendment,  § 448,  449. 

As  to  the  speculative  question,  What  is  to  be  the  future  of 
the  negroes  ? an  opinion  would  be  as  hazardous  as  would  have  been 
an  uninspired  prophecy  as  to  the  future  of  the  Jews  the  day  they 
crossed  the  Red  Sea. 

The  editor  of  the  foregoing  notes  cannot  dismiss  the  sub-  1-278. 
ject  without  a few  general  remarks,  which  have  suggested  them-  What  are 
selves  during  the  years  of  study  necessary  to  the  preparation  of the  general 
such  a work.  These  reflections  will  be  confined  to  the  changes  in  of  the™118 
the  organism  of  the  government,  silent  and  conventional.  The  editor  ? 
first  reflection  is,  that  in  the  choice  of  President  the  expectations  What  as  to 
of  the  framers  of  the  Constitution  have  been  disappointed.  The  the  choice 
choice  was  intended  to  be  left  to  the  electoral  colleges  uninfluenced  1 reSiQj^ 
by  a previous  canvass.  It  was  probably  expected  that  a failure  to 
agree  would  be  the  rule — not  the  exception — and  that  the  choice 
would  devolve  upon  the  House,  and  be  made  by  States  as  co-equals. 

The  first  disagreement  led  to  a change  of  principle.  The  conven- 
tion system  of  nominations  has  destroyed  the  influence  of  the 
small  States,  and  transferred  the  selection  of  candidates  to  the  large 
States.  The  contest  is  really  directly  for  the  candidates,  and  the 
electors  are  but  conduit  pipes,  fearfully  responsible  to  their  direct 
constituents  to  whom  they  stand  pledged. 

The  next  noticeable  fact  has  been  the  increase,  and  now  the  cur-  184-186. 
tailment,  of  the  President’s  power  and  patronage.  The  appointing 
to  office  was  always  a prerogative  of  the  crown.  The  power  to 
remove  officers  at  pleasure,  at  first  doubtfully  exercised,  has  become 
a fearful  engine  of  party.  The  tenure-of-office  law  has  attempted  184. 
to  check  the  exercise  of  the  power  without  reaching  the  root  of  the 
evil.  But  the  mischief  lies  not  so  much  in  the  constitutional  powers 
of  the  President,  as  the  too  common  error  that  the  administration  What  is  the 
is  the  government.  Upon  this  fallacy  of  not  living  “ under  Lincoln  too  common 
rule,”  the  Southern  heart  was  fired  unto  resistance  and  civil  war ; £he°p(fwer 
the  same  popular  fallacy  has  controlled  in  the  same  section  in  the  <>f  the 
contest  between  the  President  and  Congress.  So  that  whether  the  President? 


294 


CONCLUSION,  286. 


Magistrates. 


What  of  the 

judicial 

power? 

195,  275. 


What  revo- 
lutions have 
marked  the 
history  of 
the  govern- 
ment? 
229-232. 


138. 


188. 


233-235. 


executive  sympathies  are  against  or  for  us,  we  overrate  his  powers 
for  evil  or  good.  Like  all  other  magistrates,  the  President  is 
obliged  to  be  controlled  by  the  Constitution  and  the  laws  of  the 
land. 

The  third  noticeable  fact  is,  that  the  judicial  jurisdiction  and 
influence  have  been  rather  increased  and  enlarged  than  diminished. 
The  reports  of  this  branch  of  the  government  stand  as  vast  monu- 
ments of  learning.  They  are  more  permanently  and  generally 
accessible  to  the  people  than  the  expositions  of  the  other  depart- 
ments. In  a country  where  the  legal  profession  exert  so  mighty 
an  influence,  they  are  regarded  as  more  authoritative  than  other 
precedents,  because  the  exact  demarcations  of  judicial  power  are 
not  clearly  understood. 

The  revolutions  which  have  marked  the  history  of  the  govern- 
ment will  be  found  in  the  several  constitutional  amendments,  in 
the  acquisition  of  foreign  territory,  the  annexation  of  Texas,  the 
history  of  the  rebellion  and  the  consequences  which  have  followed. 
The  acquisition  of  territory  led  to  the  creation  of  “ colonial  govern- 
ments,” or  “ inchoate  States  ” (generally  confused  under  the  unde- 
fined title  of  “ Territories”),  and  a series  of  legislation  for  which 
no  direct  constitutional  grant  could  be  found ; and  which  conse- 
quently caused  a rapid  concentration  of  central  power.  Each  now 
revolutionary  fact  has  excused  an  exercise  of  the  supposed  “ neces- 
sary and  proper  ” legislation.  These  were  incidents  of  national 
sovereignty  which,  perforce,  revolutionized  the  public  ideas  of 
the  country.  The  same  may  be  said  of  the  practical  necessity 
which  crushed  the  theory  of  secession.  Sundry  express  powers 
were  specially  granted  in  the  Constitution.  To  protect  and  shield 
these  for  the  benefit  of  the  whole  people,  all  of  the  incidental  neces- 
sary powers  had  to  be  exerted.  And,  in  such  a contest,  the  lead- 
ing actors  can  never  nicely  discriminate.  So  that  if  it  should  be- 
come necessary  to  revolutionize  States  or  change  State  boundaries 
and  organizations,  for  safety,  hereafter,  we  have  the  living  prece- 
dents. 

And  yet  the  candid  student  must  admit  that  our  Constitution 
and  Union  still  stand  as  the  same  glorious  fabric,  with  the  powers 
of  departments  clearly  defined;  with  whole  bills  of  rights  unim- 
paired; with  new  guaranties  for  liberty;  with  human  slavery 
stricken  out  of  the  instrument;  and  with  a continuing  struggle  to 
protect  the  political  equality  of  all.  The  nation  is  mighty  and 
glorious  among  the  great  powers  of  the  earth,  and  may  it  be  per- 
petual. If  I shall  have  contributed  any  thing  to  the  study  of 
this  great  fabric,  my  prayers  will  have  been  answered. 

GEO.  W PASCHAL. 


Jan.  1,  1868. 


AMENDMENT,  287. 


294a 


Article  XY. 

Sec.  1.  The  right  of  citizens  of  the  United  States  ^aJs1J0the 
to  vote  shall  not  be  denied  or  abridged  by  the  United  suffrage? 
States,  or  by  any  State,  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Sec.  2.  The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

287.  The  following  proclamation,  which  was  communicated  to  On  what  day 
Congress  in  a message  of  the  President  on  the  30th  March,  1870, 
gives  the  best  history  of  the  subject: — amendment 

And  further,  that  it  appears,  from  official  documents  on  file  in  proclaimed? 
this  department,  that  the  amendment  to  the  Constitution  of  the 
United  States,  proposed  as  aforesaid,  has  been  ratified  by  the 
legislatures  of  the  States  of  North  Carolina,  West  Virginia,  Mas- 
sachusetts, Wisconsin,  Maine,  Louisiana,  Michigan,  South  Caro- 
lina, Pennsylvania,  Arkansas,  Connecticut,  Florida,  Illinois,  Indi- 
ana, New  York,  New  Hampshire,  Nevada,  Vermont,  Virginia, 

Alabama,  Missouri,  Mississippi,  Ohio,  Iowa,  Kansas,  Minnesota, 

Khode  Island,  Nebraska,  and  Texas ; in  all,  twenty-nine  States  ; 

And  further  that  the  States  whose  legislatures  have  so  ratified 
the  said  proposed  amendment  constitute  three-fourths  of  the  whole 
number  of  States  in  the  United  States; 

And  further,  that  it  appears,  from  an  official  document  on  file  in 
this  department,  that  the  legislature  of  the  State  of  New  York  has 
since  passed  resolutions  claiming  to  withdraw  the  said  ratification 
of  the  said  amendment,  which  had  been  made  by  the  legislature 
of  that  State,  and  of  which  official  notice  had  been  filed  in  this 
department ; 

And  further,  that  it  appears,  from  an  official  document  on  file  in 
this  department,  that  the  legislature  of  Georgia  has  by  resolution 
ratified  the  said  proposed  amendment ; 

Now,  therefore,  be  it  known  that  I,  Hamilton  Fish,  Secretary  of 
State  of  the  United  States,  by  virtue  and  in  pursuance  of  the  sec- 
ond section  of  the  act  of  Congress,  approved  the  twentieth  day  of 
April,  in  the  year  eighteen  hundred  and  eighteen,  entitled  “An 
act  to  provide  for  the  publication  of  the  laws  of  the  United  States, 
and  for  other  purposes,”  do  hereby  certify  that  the  amendment 
aforesaid  has  become  valid,  to  all  intents  and  purposes,  as  part  of 
the  Constitution  of  the  United  States. 

In  testimony  whereof,  I have  hereunto  set  my  hand  and  caused 
the  seal  of  the  Department  of  State  to  be  affixed.  Done  at 
the  city  of  Washington  this  thirtieth  day  of  March,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy,  and  of 
the  independence  of  the  United  States  the  ninety-fourth. 

[l.  s.]  HAMILTON  FISH. 


294b 


AMENDMENT,  287. 


In  what 
ordor  did  the 
Slates 

ratify  f 


The  States  ratified  in  the  following  order:  1869,  Kansas,  Feb’y 
27 ; Missouri,  March  1 ; Nevada,  March  1 ; West  Virginia,  March 
3;  Illinois,  March  5:  Louisiana,  March  5;  North  Carolina,  March 
6 ; Michigan,  March  8 ; Wisconsin,  March  9 ; Massachusetts, 
March  9 and  12;  Maine,  March  12;  South  Carolina,  March  16; 
New  York,  March  17  and  April  14;  Pennsylvania,  March  17  and^ 
26;  Arkansas,  March  17  and  30;  Indiana,  May  13  and  14;  Con-’ 
necticut,  May  19;  Florida,  June  15;  New  Hampshire,  July  7; 
Virginia,  October  8;  Vermont,  October  21;  Alabama,  November 
16.  1870,  Minnesota,  January  14;  Mississippi,  January  15 

Rhode  Island,  January  18;  Ohio,  January  14  and  20;  Iowa,  Jan- 
uary 19  and  20;  Georgia,  February  2;  Texas,  February  14;  Ne- 
braska, February  17. 

The  States  which  did  not  ratify  are : California,  Delaware,  Ken 
tucky,  Maryland,  New  Jersey,  Oregon, 


1 


295 


CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA. 


To  give  a clear  understanding,  without  the  necessity  of  cross-refer- 
ences, it  has  been  thought  necessary  to  reprint  the  Constitution  as  it  is 
enrolled  in  the  State  Department.  The  superior  (9)  figures  denote  what 
are  usually  called  the  enumerated  powers.  Particular  attention  is  called 
to  the  marginal  figures,  which  refer  back  to  other  expositions  of  the 
same  articles.  Of  course  no  one  will  rely  upon  the  Appendix  without 
comparing  it  with  the  original  text. 


288.  Defined.  The  powers  of  government  are,  (1)  those 
which  belong  exclusively  to  the  States ; (2)  those  which  belong 
exclusively  to  the  National  Government ; (3)  those  which  may 
be  exercised  concurrently  and  independently  by  both ; (4)  those 
which  may  be  exercised  by  the  States  until  Congress  acts  upon 
the  subject.  In  this  last  case  the  power  of  the  State  retires 
and  lies  in  abeyance  until  the  occasion  for  its  exercise  shall 
recur.  Ex  parte  McNeil,  13  Wall.,  240;  Railroad  Company 
v . Fuller,  17  Wall.,  568. 

289.  The  Government.  Soon  after  the  nullification 
ordinance  of  South  Carolina  in  1832,  there  was  a convention 
in  Georgia  which  passed  the  following  resolutions,  which 
long  embodied  the  extreme  views  of  those  who  afterwards 
became  secessionists : 

“ 1.  That  the  Federal  Government  is  a confederacy  formed 
by  the  States  composing  the  same,  for  the  specific  purposes 
expressed  in  the  Constitution,  and  for  those  alone. 

2.  That  every  exercise  by  the  Federal  Government,  or  by 
any  department  thereof,  of  the  powers  not  granted  by  the 
Constitution,  notwithstanding  it  may  be  under  the  forms  of 
law,  is,  in  relation  to  the  constituent  States,  a mere  usurpa- 
tion. 


Direction 
to  the 
reader. 


What  are 
the  powers 
of  the  Gov- 
ernment 
exclusive 
and  concur- 
rent? 

2-4. 


* 


What  was 
the  ex- 
treme 
States’ 
rights  plat- 
form in 
Georgia  ? 


( 297  ) 


298 


THE  GOVERNMENT,  288,  289. 


State  sover- 
eignty. 


Limited 

powers. 

269. 


States  to 
judge  of 
infractions. 


States  were 
sovereign. 


Remarks. 


What  are 
the  teach- 
ings of 
Stephens’s 
“ War 
among  the 
States?” 


44  3.  That  a government  of  limited  powers  can  have  no  con- 
stitutional right  to  judge,  in  the  last  resort,  of  its  own  abuses 
of  the  powers  conferred  upon  it,  since  that  would  be  to  sub- 
stitute for  the  limitations  of  the  constitutional  charter  the 
judgment  of  the  agents  wdio  were  employed  to  carry  it  into 
effect — to  annihilate  those  limitations  by  a power  derived 
from  the  same  instrument  which  created  them. 

“4.  That  the  Federal  Government  is  a government  the 
powers  of  which  are  expressly  limited  in  the  Constitution 
which  created  it,  and  can  therefore  have  no  constitutional 
right  to  judge  in  the  last  resort  of  the  use  or  abuse  of  those 
powers. 

“5.  That  it  is  essential  to  a confederated  government,  the 
powers  of  which  are  expressly  limited  by  the  Constitution 
which  creates  it,  that  there  should  exist  somewhere  a power 
authoritatively  to  interpret  that  instrument,  to  decide  in  the 
last  resort  on  the  use  or  abuse  of  the  authority  which  it  con- 
fers upon  the  common  agent  of  the  confederating  States ; that 
such  a power  cannot  belong  to  the  agent,  since  that  would 
be  to  substitute  his  judgment  for  the  constitutional  limita- 
tion ; and  that,  in  the  absence  of  a common  arbiter,  expressly 
designated  by  the  Constitution  for  this  purpose,  each  State, 
as  such,  for  itself,  and  in  virtue  of  its  sovereignty,  is  neces- 
sarily remitted  to  the  exercise  of  that  right. 

“6.  That  the  several  States  composing  the  Union  were,  at 
the  adoption  of  the  Federal  Constitution,  free,  sovereign,  and 
independent  States ; that  they  have  not  divested  themselves 
of  this  character  by  the  relinquishment  of  certain  powers  to 
the  Federal  Government — having  associated  with  their  sister 
States  for  purposes  entirely  compatible  with  the  continued 
existence  of  their  own  original  freedom,  sovereignty,  and  in- 
dependence.” (Resolutions  of  the  Nullification  Convention 
of  Georgia  in  November,  1832 ; Bench  and  Bar  of  Georgia, 
37.  And  see  Calhoun’s  Resolutions  in  the  Senate,  1833.) 

These  resolutions  were  but  an  improvement  upon,  and  a 
little  less  extreme  than,  the  nullification  ordinance  and  doc- 
trines of  South  Carolina  of  the  preceding  and  that  year,  and 
which  assumed  all  the  powers  claimed  in  the  Georgia  resolu- 
tions, and  distinctly  claimed  the  right  of  a State  to  meet  in 
convention  and  veto  or  arrest  the  operation  of  an  act  of 
Congress  in  a State  until  the  meeting  of  the  States  in  a na- 
tional convention.  They  all  claimed  to  have  their  origin  in 
the  Virginia  and  Kentucky  resolutions  of  1798,  1799.  The 
whole  first  volume  of  Alexander  H.  Stephens’s  44  War  Among 
the  States”  is  an  effort  to  maintain  the  theory  that  the  first 
struggle  arose  out  of  the  contest  between  the  supporters  of 
a strictly  federative  and  thoroughly  constitutional  govern- 
ment, and  those  of  a central  national  government.  It 
proceeds  upon  the  idea  that  the  Constitution  was  made  by 
States  and  for  States,  and  not  a political  union  between 
the  people  of  the  several  States,  except  such  as  resulted 


history,  289,  290. 

indirectly  from  the  terms  of  agreement  or  compact  be- 
tween the  States ; and  that  these  States  acted  as  sover- 
eigns, and  remained  sovereign,  and  as  a sequence  each  State 
could  determine  for  itself  its  longer  relations  to  the  Union. 
The  book  is  full  of  history  and  ingenious  argument,  and  will 
of  course  always  be  consulted  by  the  admirers* of  that  school. 
But,  to  say  the  least,  one  great  fault  of  the  argument  is,  that 
the  right  of  a State  to  judge  for  itself  as  to  infractions  of  the 
Constitution  and  the  mode  and  measure  of  redress,  must  con- 
cede that  every  other  State  has  the  same  right  to  judge  for 
itself,  and  to  meet  forcible  resistance  to  the  execution  of  a law 
passed  by  the  representatives  of  all.  And  as  every  State  is 
represented  in  the  Federal  Government,  so  long  as  a quorum 
in  Congress  favors  the  enforcement  of  the  law,  the  argu- 
ment resolves  itself  into  onre  of  power.  And  again,  every 
individual  in  every  State  and  Territory  has  certain  guaran- 
teed rights,  and  certain  responsibilities  to  every  other  State 
to  which  he  has  the  right  to  go,  and  to  trade  without 
other  burdens  than  those  imposed  upon  other  citizens,  and 
against  which  he  may  commit  treason,  without  being  a citi- 
zen thereof ; so  that  every  citizen  of  the  United  States  not 
only  owes  allegiance  to  the  Federal  Government,  to  his  own 
State,  but  to.  every  other  State  as  well.  And  in  turn,  every 
citizen  is  entitled  to  all  the  protection,  privileges,  and  im- 
munities of  the  citizens  of  each  State  in  such  State,  and  of 
the  National  Government  everywhere.  An  argument  more 
potent  against  the  doctrine  of  peaceable  secession  is  that  it 
has  been  tried  by  the  majorities  of  the  people  of  eleven 
States,  and,  after  a brave  struggle,  it  signally  failed. 

290.  History.  The  idea  of  creating  a government  which 
should  not  act  upon  the  States,  but  upon  individuals,  and  vest  in 
Congress  full  power  to  carry  its  laws  into  effect,  is  claimed  to 
have  originated  with  Noah  Webster,  in  a pamphlet  published 
by  him  in  1784-’85,  entitled  “Sketches  of  American  Policy,"’ 
a copy  of  which  was  carried  by  the  author  to  General  Wash- 
ington, at  Mount  Vernon.  It  thus  appears  that  the  idea  of 
a self-executing  government  was  conceived  and  discussed 
long  before  the  assembling  of  the  Convention.  (Webster’s 
Dictionary,  Unabridged,  Preface,  p.  xviii.) 

Jefferson  had  a clear  conception  of  a government  for  for- 
eign concerns,  modeled  on  the  same  plan  as  a State  govern- 
ment, with  legislative,  executive,  and  judicial  powers.  (Letter 
to  Madison,  16  Dec.  1786,  2 Jefferson’s  Complete  Works,  66.) 

The  first  act  of  the  Convention  was  to  resolve  “that  a 
National  Government  ought  to  be  established,  consisting  of 
a supreme  judicial,  legislative,  and  executive.”  1 Elliott’s 
Debates,  391,  392  ; 2 Madison’s  Papers,  747.  The  resolution 
was  one  of  three  offered  by  Gouvernour  Morris.  The  first 
was  against  the  plan  of  the  then  existing  confederation ; the 
second  was  against  mere  treaties  among  the  States  as  sover- 


299 


State  sover- 
eignty ? 


What  are 
the  objec- 
tions to 
this  ? 


P.  222,  notes 
220, 221. 


Who  is  said 
to  have  ori- 
ginated the 
idea  of  cre- 
ating a gov- 
ernment to 
act  upon 
the  people  ? 


State  some 
of  the 

sources  of 
informa- 
tion? 


300 


THE  PREAMBLE,  290. 


Supreme? 


Sources  of 
informa- 
tion? 


What  the- 
ory does 
the  author 
suggest  ? 


252. 


Repeat  the 
preamble, 
page  53, 
notes  6-13. 


eigns.  The  word  “ supreme  ” was  explained  not  to  be  in- 
tended to  annihilate  the  States,  only  so  far  as  the  powers 
should  clash  with  the  new  government.  War  Between  the 
States.  121-123 ; Story’s  Constitution,  book  iii,  ch.  vii,  § 518. 

Twenty-one  days  afterwards  Ellsworth’s  resolution  was 
passed,  which  substituted  u The  United  States”  for  “Na- 
tional.” 1 Elliott’s  Debates,  183.  % 

For  the  responses  of  the  States  to  the  call  for  a conven- 
tion to  revise  the  Articles  of  Confederation,  see  1 Elliott’s 
Debates,  126-138;  Hickey’s  Constitution,  pp.  129-192. 

All  the  resolutions  are  given  in  Stephens’s  War  Among 
the  States,  96-117.  The  same  author  also  gives  the  debate 
between  Webster  and  Calhoun  in  the  Senate,  (1833,)  wherein 
will  be  found  all  that  can  be  said  against  and  for  the  Consti- 
tution being  a compact  rather  than  a government.  And  see 
Calhoun’s  resolutions  upon  the  theory  of  the  Government, 
Congressional  Globe,  Appendix,  2d  session,  25th  Cong.,  p. 

98;  same  resolutions,  1 War  Among  the  States,  401. 

While  mere  theories  are  valueless  against  experience,  and 
the  one  great  precedent,  the  editor  feels  obliged  to  state,  as 
his  own  theory,  a view  which  he  does  not  remember  to  have 
seen  elsewhere.  When  this  Constitution  was  proposed,  the 
States  had  constitutions  under  which  they  claimed  inde- 
pendence, subject  only  to  the  common  union,  which  orig- 
inated in  the  necessities  of  the  common  cause,  and 
was  formulated  in  the  Articles  of  Confederation.  By  ratify- 
ing this  Constitution,  the  people  of  the  States  agreed  that  it 
should  be  engrafted  upon  the  several  State  constitutions,  pres- 
ent and  future.  And  this  being  supreme,  so  far  as  it  speaks 
distinctly  and-  by  necessary  implication,  the  State  constitu- 
tions are  silent,  anything  therein  to  the  contrary  notwith- 
standing. 

It  follows,  therefore,  that  while  any  State  may  change  its 
own  constitution  at  pleasure,  all  such  changes  are  subject  to 
the  still  paramount  Constitution  of  the  United  States,  that 
can  only  be  changed,  abridged,  or  amended  in  one  of  the 
modes  provided  in  the  instrument  itself.  The  application 
given  to  the  amendments,  in  holding  that  such  amendments 
have  no  control  upon  the  States,  would  seem  to  antagonize 
this  theory.  But  this  narrow  view  was  doubtless  taken  be- 
cause of  slavery;  and  it  has  been  followed  because  of  the 
deference  paid  to  precedents.  If  in  truth  the  Constitution  of 
the  United  States  and  all  its  amendments  be  engrafted  upon 
the  State  constitutions,  and  as  far  as  the  former  speak  they 
control  the  latter,  there  ought  to  be  little  difficulty  in  keep- 
ing the  line  of  demarkation  between  the  two  governments. 

We,  the  People  of  the  United  States,  in  order  to 
form  a more  perfect  Union,  establish  Justice,  insure 
domestic  Tranquillity,  provide  for  the  common  De- 


# 


t 


301 


WE,  THE  PEOPLE,  291,  292, 

fence,  promote  the  general  Welfare*  and  secure  the 
Blessings  of  Liberty  to  ourselves  and  our  Posterity, 
do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America. 

i 

291.  For  criticisms  on  this  preamble,  see  War  Among 
the  States,  140-145. 

uWe,  the  people  of  the  United  States.”  This 
means  those  States  which  had  before  dissolved  their  politi- 
cal bands  with  Great  Britain,  and  the  same  designation  of 
the  Government  is  found  in  the  Articles  of  Confederation ; 
and  all  who  were  then  people  of  those  States  became 
citizens  and  members  of  the  nation  created  by  the  adoption 
of  this  Confederation.  Such  were  original  citizens  of  the 
United  States  under  the  Constitution.  Minor  v . Happer- 
sett,  21  Wall.,  166,  167. 

The  term  is  not  applicable  to  the  condition  of  the  States 
they  exist  under  the  Constitution,  but  as  it  was  under  the  old 
Confederation,  before  its  adoption.  Calhoun’s  answer  to  Web- 
ster, 1833,  1 War  Among  the  States,  360. 

The  people  of  the  United  States  constitute  one  nation, 
under  one  government,  and  this  government,  within  the 
scope  of  the  powers  with  which  it  is  investedT  is  supreme. 
On  the  other  hand,  the  people  of  each  State  compose  a State, 
having  its  own  government,  and  endowed  wit'h  all  the  func- 
tions essential  to  an  independent  and  separate  existence. 
The  States  disunited  might  continue  to  exist.  Without  the 
States  in  union,  there  could  be  no  such  political  body  as  the 
United  States.  Chief  Justice  Chase,  in  Lane  County  v. 
Oregon,  7 Wall.,  76 ; repeated,  Texas  v.  White,  7 Wall., 
719;  S.  C.,  25  Tex.  Supp.,  596. 

292.  u IN  ORDER  TO  FORM  A MORE  PERFECT  UNION.” 
The  union  of  the  States  never  was  a purely  artificial  and  arbi- 
trary relation.  It  began  among  the  colonies,  and  grew  out 
of  the  common  origin,  mental  sympathies,  kindred  princi- 
ples, similar  interests,  and  geographical  relations.  It  was 
strengthened  and  received  definite  form  by  the  Articles  of 
Confederation,  by  which  the  union  was  declared  “to  be 
perpetual.”  And  when  these  articles  were  found  to  be  in- 
adequate, the  Constitution  was  ordained  to  form  a more  per- 
fect union.  Texas  v.  White*,  7 Wall.,  721 ; S.  C.,  25  Tex. 
Supp.,  599.  Under  the  Articles  of  Confederation,  each  State  re- 
tained its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right  not  expressly  delegated  to  the 
United  States.  Under  tire  Constitution,  though  the  powers 
of  the  States  were  much  restricted,  still  all  powers  not  dele- 
gated to  the  United  States  nor  prohibited  to  the  States  are 


Define  “We 
the  peo- 
ple.” 

6. 


Do  they 
constitute 
one  nation  ? 
294. 


Define  a 
more  per- 
fect Union. 
7. 


302 


ESTABLISH  JUSTICE,  292,  293.  [Art. I, Sec.  1,2, 


Art.  X,  n. 
269. 


Is  the  Un- 
ion indis- 
soluble? 


Define  “ To 

establish 

justice?” 

8. 


reserved  to  the  States  respectively  or  to  the  people.  And 
“ the  people  of  each  State  compose  a State,  having  its  own 
government,  and  endowed  with  all  the  functions  essential  to 
separate  and  independent  existence,”  and  u without  the 
States  in  union,  there  could  be  no  such  political  body  as  the 
United  States.”  (Lane  County  v.  Oregon,  7 Wall.,  96.)  Not 
only,  therefore,  can  there  be  no  loss  of  separate  and  inde- 
pendent autonomy  to  the  States  through  their  union  under 
the  Constitution,  but  the  preservation  of  the  States  and  the 
maintenance  of  their  governments  are  as  much  within  the 
design  and  care  of  the  Constitution  as  the  preservation  of  the 
Union  and  the  maintenance  of  the  National  Government. 
The  Constitution,  in  all  its  provisions,  looks  to  an  indestructi- 
ble union,  composed  of  indestructible  States.  The  obligations 
of  the  State  as  a member  of  the  Union,  and  of  every  citi- 
zen of  the  State  as  a citizen  of  the  United  States,  after 
secession  remained  perfect  and  unimpaired.  It  certainly 
follows  that  the  State  did  not  cease  to  be  a State,  nor  its  citi- 
zens to  be  citizens  of  the  Union.  Texas  v.  White,  7 Wall., 
725;  S.  C.,  25  Tex.  Supp.,  600. 

When  Texas  became  one  of  the  United  States,  it  entered 
into  an  indissoluble  relation.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as  indis- 
soluble as  the  union  between  the  original  States.  There  was 
no  place  for  reconsideration  or  revocation,  except  through 
revolution  or  through  the  consent  of  the  States. 

Considered  as  transactions  under  the  Constitution,  the 
ordinance  of  secession  adopted  by  the  convention,  and  rati- 
fied by  a majority  of  the  citizens  of  Texas,  and  all  the  acts  of 
its  legislature  intended  to  give  effect  to  that  ordinance,  were 
absolutely  null.  They  were  utterly  without  operation  in  law. 
The  State  did  not  cease  to  be  a State,  nor  its  citizens  to  be 
citizens  of  the  Union.  (Paschal’s  Digest,  78.)  Texas  v.  White, 
7 Wall.,  701 ; S.  C.,  25  Tex.  Supp.,  466.  And  see  Chief  Jus- 
tice Chase  in  Shortridge’s  case,  quoted  and  approved  in  the 
Sequestration  Cases,  30  Tex.,  708. 

293.  u Establish  justice.”  One  of  the  means  of 
establishing  justice  was  to  prohibit  any  State  from  passing 
any  law  impairing  the  obligation  of  contracts. 

What  is  justice  is  not  left  in  doubt  as  to  contracts . There 
was  a simultaneous  ordinance  by  the  Congress  of  the  Con- 
federation for  the  government  northwest  of  the  Ohio.  One  of 
the  objects  was  “for  the  purpose  of  extending  the  funda- 
mental principles  of  civil  and  religious  liberty,  whereon  these 
republics,  their  laws  and  constitutions,  are  erected.”  And 
while  Congress  may  enact  bankrupt  laws  which  impair  con- 
tracts, and  may  incidentally  impair  them  by  laws  passed  in 
the  execution  of  an  express  power,  yet  if  enacted  not  in  aid 
of  an  express  power,  and  in  its  direct  operation  the  law  im- 
pairs the  obligation  of  contracts,  it  would  be  inconsistent  with 


Cl.  1.]  HOUSE  OF  REPRESENTATIVES,  293-297. 


303 


the  spirit  of  the  Constitution.  Chief  Justice  Chase  in  Hep- 
burn v . Griswold,  8 Wall.,  622,  624.  This  seems  to  be  a 
strained  application  of  a familiar  principle.  The  impairment 
of  contracts  can  hardly  be  said  to  enter  fairly  into  the  discus- 
sion of  the  legal-tender  question.  Congress  is  not  prohibited 
from  passing  laws  which  incidentally  or  directly  impair  the 
obligation  of  contracts.  Legal-Tender  Cases,  12  Wall.,  547- 
549.  The  words  doubtless  had  reference  to  the  distribution 
of  judicial  power  in  the  manner  prescribed  by  the  judiciary 
act  of  1789  and  the  several  amendments  of  1866,  1867,  and 
1875,  relative  to  the  transfer  of  causes. 

294.  “ Secure  domestic  tranquillity.”  Thisisfuly 
defined  in  note  10.  The  exercise  of  judicial  power  in  contro- 
versies between  States  has  been  a potent  means  of  preserving 
domestic  tranquillity.  Ableman  v.  Booth,  21.  How.,  506. 

295.  “Provide  for  the  common  Defence.”  See 
note  10.  The  legislation  which  bears  upon  this  power  is 
collected  in  the  Revised  Statutes.  Sections  214-232, 1094-1242. 

296.  “Promote  the  general  welfare.”  Should 
any  of  the  States  interpose  formidable  obstacles  to  the  free 
movement  of  the  commerce  of  the  country,  so  as  to  impede 
the  passage  of  produce,  merchandise,  or  travel  from  one  part 
of  the  country  to  another,  the  case  would  not  be  a casus 
omissus  in  the  Constitution.  Commercially  this  is  but  one 
country,  and  intercourse  between  all  its  parts  should  be  as 
free  as  due  compensation  to  the  carrier  interest  will  allow. 
Railroad  Company  v.  Maryland,  21  Wall.,  474. 

Article  I. 

Section  1.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a Congress  of  the  United  States, 
which  shall  consist  of  a Senate  and  House  of  Repre- 
sentatives. 

29  ?.  The  judicial  department  cannot  prescribe  to  the 
legislative  limitations  upon  the  exercise  of  its  power  to  tax. 
Veazie  Bank  v.  Fenno,  8 Wall.,  548. 

Section  2.  1The  House  of  Representatives  shall  be 
composed  of  Members  chosen  every  second  Year  by 
the  People  of  the  several  States,  and  the  Electors  in 
each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State 
Legislature. 


P.  112,  n. 
93,  94. 


How  has 
domestic 
tranquillity 
been  pre- 
served? 


Give  an  ex- 
ample of 
the  general 
welfare. 

11,  289. 


In  what  is 
the  legisla- 
tive power 
vested?  P. 
58,  notes  14, 
15. 


Can  the  ju- 
dicial de- 
partment 
limit  the 
legislatioft 
of 

Define “the 
House  of 
Represent- 
atives.” 
Page  58, 
notes  16-18. 


304 


QUALIFICATIONS,  298,  299.  [Art.  I,  Sec.  2, 


What  is  the 
object  of 
elections? 


What  of 
Mexicans 
and  In- 
dians ? 


What  is  the 
power  of 
the  State 
over  the 
qualifica- 
tions of 
electors? 


What  effect 
has  the 
fifteenth 
amend- 
ment upon 
suffrage  ? 

P.  50. 


298.  “Members  chosen  every  second  year  by  the 

PEOPLE  OF  THE  SEVERAL  STATES.”  The  Object  of  this  is  to 
establish  the  body  of  electors,  and  not  to  prescribe  the  man- 
ner of  choice.  (See  the  question  argued,  report  of  Garrett 
Davis  on  the  general  ticket  question,  1842-’43.  Contested 
Elections,  57.) 

The  Mexicans  who,  by  written  declaration,  elected  to  re- 
tain their  Mexican  citizenship  under  the  treaty  of  Guada- 
lupe Hidalgo  were  not  citizens  of  the  United  States,  entitled 
to  vote  in  Sew  Mexico.  Nor  were  the  Indians  of  that  terri- 
tory, who  remained  in  their  tribal  relations.  Otero  v.  Gal- 
legos, 3 Contested  Elections,  177. 


299.  “ Qualifications  requisite  for  electors.” 
The  elective  officers  of  the  United  States  are  all  chosen  by 
the  people  of  the  States ; and  at  the  time  of  the  adoption  of 
this  Constitution  the  qualifications  were  various,  as  will  be 
seen  in  this  opinion,  and  it  was  not  intended  by  the  Consti- 
tution to  take  from  the  States  the  right  of  determining  who 
should  be  qualified  electors.  Minor  v.  Happersett,  21  Wall., 
172,  173. 

The  fifteenth  amendment,  being  the  supreme  law,  in  effect 
has  erased  the  word  “ white ,”  as  a requisite  for  suffrage,  out 
of  the  constitutions  of  the  States ; and  although  there  still 
exists  want  of  uniformity  in  the  qualifications  for  suffrage, 
there  no  longer  remains  a distinction  founded  upon  color. 
Neither  the  fourteenth  nor  fifteenth  amendments  intended 
to  take  from  the  States  the  right  to  determine  who  shall 
vote.  The  power  to  discriminate  as  to  color  is  denied.  So 
a deduction  from  representation  for  any  other  cause  than 
rebellion  or  crime  lessens  the  numbers  to  be  computed  in 
the  basis  of  representation.  But  the  amendments  confer  no 
absolute  right  of  suffrage.  Minors.  Happersett,  21  Wall.,  174. 
Anthony  v.  The  United  States,  Justice  Hunt,  18  June,  1874. 
Subject  to  the  limitations  in  the  fifteenth  amendment,  the 
power  to  fix  the  qualifications  of  voters  remains  in  the  States 
Huber  v.  Riley,  53  Penn.  St.  R.,  115;  Ridley  v.  Sherbrook,  3 
Cold.,  569  ; Anderson  v.  Baker,  2 Md.,  531;  Brightley’s  Elec- 
tion Cases,  27 ; American  Law  of  Elections,  by  McR  ary,  § 13. 
The  usual  qualifications,  as  will  be  seen  in  note  16,  are  citizen- 
ship, residence,  majority,  male  sex ; and  the  disqualifications 
in  some  States  are  non-payment  of  taxes,  non-registration, 
infancy,  idiocy,  and  lunacy.  The  Legislature  cannot  create 
a disqualification  not  found  in  the  Constitution.  McCafferty 
v.  Geiger,  59  Penn.  St.  R.,  109 ; Brightley’s  Election  Cases, 
44;  American  Election  Cases,  10.  To  the  States  which  allow 
aliens  who  have  declared  their  intention  to  become  citizens 
to  vote  may  be  added  South  Carolina,  Texas,  and  others  of 
the  reconstructed  States.  But  it  has  not  been  thought  worth 
while  to  classify  the  qualifications  again. 


Cl.  2,  3.]  REPRESENTATIVES  AND  TAXES,  300,  301.  805 


2No  Person  shall  be  a Representative  who  shall  What  are 
not  have  attained  to  the  Age  of  twenty-five  Years,  tion.^oT 
and  been  seven  Years  a Citizen  of  the  United  States,  tfon?senta* 
and  who  shall  not,  when  elected,  be  an  Inhabitant  of  noteVi9,20. 
that  State  in  which  he  shall  be  chosen. 

300.  “No  PERSON  SHALL  BE  A REPRESENTATIVE,”  Can  the 

&c.  The  States  can  no  more  prescribe  new  qualifications  for  States  add 
a representative  than  they  can  for  President.  (1  Kent,  228,  I®  l* 

note,/;  2 Story  on  the  Const.,  pp.  99-103.)  Turneys.  Mar- 
shall, andFoukew.  Turnbull,  3 Contested  Elections,  167, 168. 

It  is  a fair  presumption  that  when  the  Constitution  pre- 
scribed the  qualifications  it  intended  to  exclude  all  others.  It 
would  take  away  from  the  people  of  the  States  the  right  to 
choose.  Ho.  Reps.,  June,  1868 ; Bingham’s  Speech,  32  Globe, 
part  2,  p.  830. 

301.  “And  WHO  SHALL  NOT,  WHEN  ELECTED,  BE  AN  Define  “in- 
INHABITANT  OF  THE  STATE  IN  WHICH  HE  SHALL  BE  habitant.” 
chosen.”  An  inhabitant  is  a bona  fide  member  of  the  State, 

subject  to  all  the  requisitions  of  its  laws  and  entitled  to  all 
the  privileges  which  they  may  confer.  Bailey’s  Case,  Con- 
tested Election  Cases,  411 ; Pigott’s  Case,  14  February,  1863, 

3 Contested  Elections,  463,  464;  47  Congressional  Globe, 

1210,  1211. 

Pigott  had  resided  in  the  District  of  Columbia  eleven  or  Give  an  ex- 
twelve  years,  owned  real  estate  there,  and  had  voted  there,  amp^r 
and  had  only  returned  to  North  Carolina  as  the  secretary  of 
the  military  governor,  Stanley.  But  see  the  case  of  Senator 
Ames,  elected  Senator  from  Mississippi,  where  he  had  never 
resided,  except  as  commanding  general. 

8 Representatives  and  direct  Taxes  shall  be  ap-  Give  the 
portioned  among  the  several  States  which  may  be  resenta-rep’ 
included  within  this  Union,  according  to  their  re-  changed  by 
spective  Numbers,  which  shall  be  determined  by  ad-  amend-enth 
ding  to  the  whole  Number  of  free  Persons,  including  ^279,  2l-P' 
those  bound  to  Service  for  a Term  of  Years,  and  ex-  notes  22-24. 
eluding  Indians  not  taxed,  three-fifths  of  all  other 
Persons.  The  actual  Enumeration  shall  be  made 
within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every 
subsequent  Term  of  ten  Years,  in  such  Manner  as 
they  shall  by  Law  direct.  The  Number  of  Represent- 


306 


DIRECT  TAXES,  302,  303. 


[Art.  I,  Sec.  2, 


Thirty 

thousand. 


Has  this 
clause  been 
supersed- 
ed? 

P 279. 


22,  72,  77, 
144. 


Define  “di- 
rect taxes.” 


22. 


atives  shall  not  exceed  one  for  every  thirty  Thou- 
sand, but  each  State  shall  have  at  Least  one  Repre- 
sentative ; and  until  such  Enumeration  shall  be  made 
the  State  of  New  Hampshire  shall  be  entitled  to 
chuse  three,  Massachusetts  eight,  Rhode  Island  and 
Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsjdvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten,  North 
Carolina  five.  South  Carolina  five,  and  Georgia  three. 

302.  “Representatives  and  direct  taxes  shall 

BE  APPORTIONED  AMONG  THE  SEVERAL  STATES.”  Were 
not  the  words  “and  direct  taxes”  carefully  or  carelessly 
omitted  out  of  the  first  line  of  section  2,  article  XIV,  I 
should  say  that  those  down  to  the  first  period  are  superseded 
by  that  section.  Certainly  the  basis  of  apportionment  is 
wholly  changed.  And  as  to  direct  taxes,  the  numbers  have 
to  be  calculated  by  the  apportionment  under  the  amend- 
ment. It  is  notable  that  under  that  amendment  representa- 
tion is  based  upon  voters  as  well  as  numbers.  If  the  familiar 
rule  of  construction  be  invoked  which  was  applied  in  Mur- 
duck  v.  Memphis,  20  Wall.,  617;  United  States  v.  Tyner, 
11  Wall.,  88 ; Henderson  v.  Tobacco,  lb.,  652 ; Bartlett  v. 
King,  12  Mass.,  537 ; Cincinnati  v.  Cody,  10  Pick.,  36 ; 
Sedgwick  on  Stats.,  126 ; then  all  to  the  first  period  is  re- 
pealed by  the  second  section  of  the  fourteenth  amendment,thus 
excluding  the  words  4 ; direct  taxes.  ’ ’ All  after  the  words 
“actual  enumeration  ” has  expired  by  having  been  ful- 
filled, except  it  be  the  obligation  to  enumerate  “every  ten 
years,”  and  the  inhibition  against  a less  representation  than 
“ONE  FOR  every  thirty  thousand.”  And  by  the  canons 
of  statutory  construction,  these  exceptions  might  be  regarded 
as  superseded,  and  the  whole  clause  no  longer  of  force.  But 
see  art  IV,  sec.  9,  cl.  4. 

If  Congress  see  fit  to  impose  a capitation  or  other  direct  tax, 
it  must  be  laid  in  proportion  to  the  census ; if  to  impose  duties, 
imposts,  and  excises,  they  must  be  uniform  throughout  the 
United  States.  These  are  not  limitations,  but  rules  showing 
how  the  power  shall  be  exercised.  Veazie  Bank  v . Fenno, 
8 Wall.,  541. 

303.  “ And  direct  taxes.”  Adam  Smith  does  not  de- 
fine direct  taxes.  We  have  to  resort  to  acts  of  Congress  for 
definitions.  In  each  of  the  acts  for  the  collection  of  direct 
taxes,  a gross  sum  was  laid  upon  the  United  States,  and  the 
total  amount  was  apportioned  to  the  several  States,  according 
to  the  respective  numbers  of  the  inhabitants,  as  ascertained 
by  the  last  preceding  census. 


Cl.  3.]  SHALL  BE  APPORTIONED,  303,  304. 

Having  been  apportioned,  provision  was  made  for  the 
imposition  of  the  tax  upon  the  subject  specified  in  the  act, 
fixing  its  total  sum.  Personal  property,  contracts,  occupa- 
tions, and  the  like  have  never  been  regarded  by  Congress 
as  the  subjects  of  direct  tax.  (Acts  of  14  December,  1798, 1 St., 
597;  2 August,  1813,  3 St.,  53;  9 July,  1815,  3 St.,  164;  5 
March,  1816,  3 St.,  255 ; 5 August,  1861, 12  St.,  294.)  Veazie 
Bank  v.  Fenno,  8 Wall.,  541-543. 

These  acts  respectively  imposed  two,  three,  six,  (changed 
to  three,)  million  dollars.  No  other  direct  tax  was  laid  until 
the  act  of  5 August,  1861,  (12  St.,  294,)  when  a direct  tax 
of  twenty  million  dollars  was  laid  and  collected  annually, 
but  it  was  suspended  after  the  first  year.  The  subjects  were 
land,  improvements,  dwelling-houses,  and  slaves. 

Slaves  were  either  the  subject  of  capitation  tax  or  were 
taxed  as  realty.  Yeazie  Bank  v.  Fenno,  8 Wall.,  543,  549. 

Direct  taxes  have  been  limited  to  taxes  on  land  and  appur- 
tenances, and  taxes  on  polls  or  capitation  taxes.  (3  Mad- 
ison Papers,  1387  ; Hylton  v . United  States,  3 Dallas,  171,  in 
which  all  agreed  that  a tax  on  carriages  was  not  a direct 
tax.)  A tax  upon  the  circulation  of  State  banks  is  not  a di- 
rect tax,  but  is  in  the  nature  of  a tax  upon  incomes  of  insur- 
ance companies,  which  has  been  held  not  to  be  a direct  tax. 
(Pacific  Insurance  Company  v.  Soule,  7 Wall.,  434.)  Such 
a tax  is  not  upon  the  franchise  of  the  bank,  which  might  be 
taxed,  but  upon  the  property  created  on  contracts  made  and 
issued  under  the  franchise.  Yeazie  Bank  v.  Fenno,  8 Wall., 
545,  547. 

304.  “Shall  be  apportioned.”  See  the  General 
Ticket  case,  1 Contested  Election  Cases,  47.  This  clause  fur- 
nishes the  principle  and  manner  of  every  apportionment  of 
representation.  The  manner  of  making  the  enumeration  is 
confided  to  Congress,  but  the  manner  of  making  the  appor- 
tionment is  not.  The  apportionment  must  be  made  to  each 
of  the  several  States,  the  admission  and  right  to  representa- 
tion, of  which  Congress  may  determine.  But  the  apportion- 
ment must  be  based  on  numbers  of  the  federal  populations, 
and  it  must  be  to  each  one  of  the  several  States  of  the  Union. 
By  that  event,  (emancipation,)  if  the  census  of  1860  is  to  be 
our  guide,  3,950,431  of  the  people  of  the  republic  were 
changed  from  being  slaves  to  citizens,  and  by  that  change 
1,580,212  “ persons”  were  added  to  the  representative  popu- 
lation of  the  republic.  This  event  has  such  magnitude  as 
that,  if  an  apportionment  is  to  be  now  made  based  on  it , that 
apportionment  will  reduce  the  aggregate  representation  from 
the  free  States  from  156,  as  it  now  is,  to  147  members,  thus 
depriving  them  of  nine  members  of  the  Housh ; this  by  ad- 
hering to  the  ratio  of  representation  upon  which  the  mem- 
bership of  this  House  is  elected,  namely,  127,000 ; and  it  will 
increase  the  aggregate  representation  from  the  late  slave 


307 


Give  a his- 
tory. 


Upon  what 
have  direct 
taxes  been 
laid  ? 


Define  “ ap- 
portioned.’* 


23. 


308 


WITHIN  THE  UNION,  304-306.  [Art.  I,  Sec.  2, 


Cases. 


Define 
“among  the 
several 
States.” 

23,  304. 


To  what  are 

numbers 

confined? 


303. 


What  are 
the  rights 
of  dele- 
gates from 
the  Terri- 
tories ? 
P.235,  notes 
229,  230. 


States  from  85  to  94  members.  Hamilton’s  Case,  40th  Cong. 
3d  session,  Ho.  Reps.  Rep.  38. 

305.  “Among  the  several  States.”  The  Congress,  by- 
other  provisions  of  the  Constitution,  has  the  power  to  determ- 
ine when  a territory  or  people  are  in  such  numbers,  or  in  or- 
ganization, or  in  attachment  to  the  Government  of  the  United 
States,  as  to  be  fit  or  entitled  to  be  admitted  as  one  of  “the 
several  States  included  in  the  Union.”  But  being  so  admit- 
ted and  recognized  by  Congress  as  such  State,  the  Congress 
has  no  discretion  as  to  the  apportionment  to  such  State  of  rep- 
resentation, but  must  accord  representation  to  each  State  so 
admitted  and  recognized  by  Congress.  Hamilton’s  Case, 
Ho.  Reps.  Rep.  No.  37,  40th  Cong.,  3d  session. 

This  principle,  expressed  by  a committee  and  acted  upon 
by  the  House,  is  in  accordance  with  the  ground  taken  by 
the  38th,  39th,  40th,  and  41st  Congresses,  in  determining 
that  the  eleven  States  which  had  engaged  in  the  rebellion 
were  not  entitled  to  representation  until  they  had  fully  com- 
plied with  the  reconstruction  laws,  did  not  deny  the  existence 
of  the  States  among  which  representation  had  already  been 
apportioned.  Indeed,  the  whole  action  of  the  President  and 
Congress,  although  widely  differing,  proceeded  upon  the 
theory  that  while  these  were  “ States  included  in  the  Union  ” 
for  many  purposes,  yet  having  voluntarily  surrendered  their 
representation  in  Congress,  the  Government,  either  the  Pres- 
ident or  Congress,  or  the  appropriate  number  of  States,  by 
constitutional  amendments,  might  determine  when  they 
should  be  readmitted  to  representation.  Texas  v.  White,  7 
Wall.,  700;  S.  C.,  25  Tex.  Supp.,  465. 

306.  “Which  may  be  included  within  this 
Union.”  There  is  no  provision  for  representation  from  a 
Territory , or  from  any  but  the  “ States.”  It  has  been  the 
universal  custom,  however,  to  grant  to  the  people  of  the  Terri- 
tories this  privilege,  and  no  territorial  government  has  been 
organized  without  it.  It  is  a custom  so  well  established  as  al- 
most to  have  assumed  the  force  of  law.  Sibley’s  Case,  3 Con- 
tested Elections,  101.  This  right  was  secured  by  the  ordinance 
of  13th  July,  1787,  and  it  cannot  be  denied.  Id.,  105.  But  this 
was  a right  older  than  the  Constitution,  and  was  secured  by 
the  ordinance  of  the  Confederation.  The  delegate  was  given 
the  privilege  of  debating,  though  not  of  voting.  That  ordi- 
nance was  reaffirmed  by  an  act  of  Congress  under  the  Con- 
stitution, and  the  delegate  permitted  to  hold  his  seat.  This 
has  served  as  a precedent  for  all  the  other  territorial  organi- 
zations. Smith’s  Case,  (from  New  Mexico,)  3 Contested 
Elections,  10?,  109  ; Babbitt’s  Case,  (from  Deseret,)  Id.,  117  ; 
Messevy’s  Case,  (from  New  Mexico,)  Id.,  150. 

But  in  every  such  case  the  delegate  has  been  chosen  under 
the  laws  of  Congress,  and  from  a government  subordinate 


Cl.  3.] 


ACTUAL  ENUMERATION,  306-308. 


309 


to  and  emanating  from  the  Constitution  and  laws  of  the 
United  States.  Messevy’s  Case,  3 Contested  Elections,  150. 

And  although  New  Mexico  was  one  of  the  organized  Mexi- 
can territories,  yet  it  did  not  remain  such  after  its  transfer  to 
the  United  States,  and  a delegate  to  Congress  informally 
chosen  by  those  people  was  not  entitled  to  a seat  as  a dele- 
gate from  a Territory.  Smith’s  Case,  3 Contested  Elections, 

108,  110.  Sibley’s  Case  was  based  upon  the  position  that  the 
territorial  government  of  Wisconsin  was  not  merged  in  the 
State  government  formed  out  of  a part  of  that  territory.  Id., 

110,  117. 

The  question  was  debated  with  reference  to  the  destruction 
of  the  Mexican  territorial  organization  by  the  transfer,  and 
as  to  the  right  of  Texas  over  that  territory,  and  Smith  was 
denied  his  seat.  3 Contested  Elections,  (1849,)  pp.  107-116. 

See  Congressional  Globe,  vol.  21,  part  2,  pp.  1038-1411. 

Babbitt’s  Case,  who  came  from  the  state  of  Deseret,  was 
one  of  peculiar  interest;  but  it  only  settled  the  principle 
that  where  there  was  no  regular  territorial  organization, 
the  member  would  not  be  admitted.  2 Contested  Elections, 

116. 

In  Messevy’s  case,  the  people  of  New  Mexico  had  organ- 
ized a State  government,  and  elected  senators  and  repre- 
sentatives ; but  it  was  action  without  a preceding  enabling 
act,  and  in  the  absence  of  the  existence  of  a territorial  or- 
ganization. 

In  some  instances  the  law  has  provided  that  the  delegate 
should  be  elected  by  the  territorial  legislature  ; in  others  by 
the  people  included  under  the  government.  But  in  every 
case  the  delegate*  admitted  has  been  chosen  by  laws  pre- 
viously enacted  by  Congress.  See  act  of  1817,  Messevy’s 
case,  Contested  Elections,  151. 

In  the  great  Kansas  controversy,  Congress  went  behind 
the  territorial  laws,  and  allowed  proof  of  the  revolutionary, 
violent,  and  fraudulent  manner  in  which  these  laws  were  en- 
acted, and  decided  that  the  territorial  laws  were  nullities, 
and  that  the  delegate  was  elected  without  authority  of  law. 

Reeder  v.  Whitfield,  5 March,  1856,  3 Contested  Election 
Cases,  185.  The  debate  will  be  found  in  the  32d  and  33d 
volumes  of  the  Globe.  As  to  irregularities  and  powers,  see 
the  Nebraska  case,  Bennett  v.  Chapman,  18  April,  1856,  3 
Contested  Elections,  204. 

307.  “ According  to  their  respective  numbers.”  what  effect 
The  increase  of  representative  numbers  by  the  destruction  had  tbe  de- 
of  slavery  in  Tennessee  did  not  entitle  that  State,  or  any  siavery0rup- 
other  slave  State,  to  a new  apportionment  and  a corres-  on  num- 
ponding  increase  of  representatives.  Hamilton’s  Case,  40th  bers? 
Cong.,  3d  session,  Report  No.  28. 

308.  “The  ACTUAL  ENUMERATION  SHALL  BE  MADE,  Whatwere 


310 


WHEN  VACANCIES  HAPPEN,  309.  [Art.  I, Sec.  2, 


intended 
by  refer- 
ence to  the 
census? 

24. 


How  are 
vacancies 
filled  ? 

P.  72,  note 
25. 


Define 
“ happen.” 
185,  186. 


What  was 
the  case  of 
Prentiss 
and  Word? 


* * AND  WITHIN  EVERY  SUBSEQUENT  TERM  OF  TEN 

years.”  These  precedents  involve  and  sustain  the  follow- 
ing propositions,  namely: 

1.  That  “ the  Constitution  evidently  contemplated  a cen- 
sus only  once  in  ten  years,  and  consequently  a new  appor- 
tionment, based  upon  such  census,  only  once  in  ten  years.” 

2.  “The  census  and  apportionment,  thus  connected  to- 
gether in  the  Constitution,  have  been  connected  together  in 
all  subsequent  legislation  of  Congress.” 

3.  “There  can  be  no  such  thing  as  one  State  represented 
according  to  one  apportionment  and  under  one  census,  and 
another  State  according  to  some  other  apportionment  based 
on  another  census.  The  whole  number  of  representatives 
and  the  number  for  each  State  are  both  fixed  by  law,  and  by 
the  same  law.  There  cannot  be  one  law  for  one  State  and 
another  law  for  another.”  See  Lowe’s  Case,  1862,  Contested 
Elections,  421,  423,  approved  by  the  House  without  division. 

4.  All  former  special  acts  of  apportionment  have  been 
passed,  at  least  professedly,  to  supplement  the  acts  of  gen- 
eral apportionment,  and  to  complete  the  equality  of  that  ap- 
portionment to  and  among  each  and  every  one  of  the  several 
States ; and  no  act  was  ever  passed  which  contemplated  or 
recognized  any  other  State  as  being  left  without  its  just 
proportion  of  representation,  as  contrasted  with  what  was 
accorded  by  the  special  and  the  general  law  to  every  other 
State.  Hamilton’s  Case,  Ho.  Reps.  Rep.  28,  40th  Cong.,  3d 
session . Lowe’s  case  contained  a full  review  of  the  statutes 
about  the  census,  and  settles  that  the  law  of  1860  did  not  take 
effect  until  4 March,  1863.  3 Contested  Elections,  418-424. 

4 When  Yacancies  happen  in  the  Representation 
from  any  State,  the  Executive  Authority  thereof 
shall  issue  Writs  of  Election  to  fill  such  Yacancies. 

309.  The  word  “happen”  is  not  necessarily  confined 
to  fortuitous  or  unforeseen  events,  but  is  equally  applicable 
ble  to  all  events  which,  by  any  means,  occur  or  come  to 
pass,  whether  foreseen  or  not.  It  is  equivalent  to  the  word 
exist . Gholson  and  Claiborne’s  Case,  Contested  Election 
Cases,  9,  25th  Cong.,  3d  session,  25  September,  1837.  But  this 
view,  although  concurred  in,  was  not  maintained.  President 
Van  Buren  convened  the  25th  Congress  in  extraordinary  ses- 
sion, to  meet  on  the  first  Monday  in  September,  1837.  The 
24th  Congress  had  expired  on  the  4th  of  March  of  that  year, 
and  the  regular  time  for  election  in  Mississippi  was  not  until 
the  first  Monday  in  November  thereafter.  The  Governor  is- 
sued his  proclamation  for  an  election,  (assuming  that  “ a va- 
cancy had  occurred,”)  “ to  be  held  on  the  first  Monday  in  July, 
to  fill  said  vacancy,  until  superseded  by  the  members  to  be 


Cl.  4,  5.]  SPEAKER  AND  OTHER  OFFICERS,  309,  310.  311 


elected  at  the  next  regular  election  on  the  first  Monday'  fUid  Regular 
day  in  November  next.”  At  this  special  election  Samuel  S.  a{ld  special 
Gholson  and  F.  H.  Claiborne  were  chosen.  They  had  been  e ec  lons* 
members  of  the  24th  Congress,  and  their  terms  expired  on  the 
4th  of  the  preceding  March.  But  for  the  extra  session,  there 
would  have  been  no  necessity  for  an  election.  The  vacancy 
happened  because  of  the  failure  of  Mississippi  to  elect  members 
to  the  25th  Congress  before  the  24th  expired.  Upon  this 
state  of  facts,  the  House  voted  that  Gholson  and  Claiborne 
were  duly  elected  members  of  the  25th  Congresss — yeas  118, 
nays  101.  This  decision  may  be  said  to  have  been  reversed. 

At  the  time  prescribed  by  law  (in  November)  a regular  elec- 
tion was  held,  at  which  S.  S.  Prentiss  and  Thomas  J.  Word 
were  chosen.  Gholson  and  Claiborne,  standing  upon  the  de- 
cision of  Congress,  declined  the  canvass.  With  the  Govern- 
or’s certificate  of  election,  Prentiss  and  Word  now  contested 
the  seats  of  the  sitting  members.  After  full  discussion,  the 
House,  on  the  31st  January,  1838,  rescinded  the  previous 
resolution — yeas  119,  nays  112.  (Contested  Election  Cases, 

15.)  And  on  the  3d  of  February  the  House  voted  that 
Prentiss  and  Word  were  not  entitled  to  their  seats — yeas 
118,  nays  116.  Id.,  16.  For  debates,  see  5 Congressional 
Globe,  80,  82,  85,  88 ; same.  Appendix  85,  91,  130,  223 ; 6 
Id.,  '56,  104,  119,  145,  146,  148,  150,  155,  158,  and  Ap- 
pendix, 68,  93,  124,  127.  A very  full  report  of  the  case  will 
also  be  found  in  the  Life  of  S.  S.  Prentiss. 

The  final  action  of  the  House  in  excluding  Gholson  and  Can  a vac- 
Claiborne  is  a correct  precedent.  A vacancy  cannot  be  said 
to  have  happened  when  the  time  prescribed  to  elect  members  the  seat  ° e 
to  a new  Congress  had  not  arrived,  because  no  seats  in  that  has  been 
Congress  had  been  actually  or  prospectively  filled  by  mem-  fiUed  ? 
bers  from  Mississippi.  The  power  to  order  the  election  did 
not  exist  in  the  Governor.  It  should  have  followed,  as  a 
logical  sequence,  that  Prentiss  and  Word  were  entitled  to 
their  seats.  But  members  voted  upon  purely  political  grounds, 
and  it  was  one  of  those  revolutionary  exercises  of  power  for 
which  the  democracy  suffered  severely  in  Mississippi  for  many 
years. 


5 The  House  of  Eepresentatives  shall  chuse  their  who 


Speaker  and  other  Officers,  and  shall  have  the  sole  th°°speak- 
Power  of  Impeachment.  er  and  has 


er  anc 
the  power 
of  im- 


310.  “The  House  of  Eepresentatives  shall  chuse  peaeh- 
their  Speaker  and  other  officers.”  While  the  clerk  paenel^2 
of  the  former  House  presided,  during  the  efforts  to  organize  notes  26, 
the  House  he  only  put  questions,  without  the  power  to  de-  27. 
cide,  or  even  to  preserve  order.  These  powers  are  conferred 
by  rules  146, 147.  Senator  Sumner,  3 President’s  Trial,  293. 

The  following  is  necessary  to  complete  note  26,  p.  73  : # 


2o 


Page73. 


312 


7 


THE  SENATE,  311. 


[Art.  I,  Sec.  2,  3, 


Name  the 
late  Speak- 
ers. 


How  many 
Senators 
and  how 
chosen. 
Page  74, 
notes  28-30. 


What  is  a 
lawful  leg- 
islature ? 
Notes  332, 
333. 


Johnson’s 
mode  of  re- 
construc- 
tion. 


The  Ala- 
bama case. 


Speakers. 

40  Schuyler  Colfax,  March  4,  1867,  to  March  3,  1869. 

40  Theodore  M.  Pomeroy,  for  March  3,  1809,  Y.  Y. 

41  James  G.  Blaine,  March  4,  1869,  March  3,  1871,  Maine. 

42  James  G.  Blaine,  March  4,  1871,  March  3,  1873. 

43  James  G.  Blaine,  December  1,  1873,  March  3,  1875. 

44  Michael  C.  Kerr,  December  6,  1875,  Indiana. 

Section  3.  xThe  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen 
by  the  Legislature  thereof,  for  six  Years;  and  each 
Senator  shall  have  one  Yote. 

311.  “Chosen  by  the  Legislature  thereof.” 
Within  the  last  few  years  it  has  several  times  become  a ques- 
tion of  great  import  as  to  what  is  the  Legislature  of  a State 
within  the  meaning  of  this  clause.  After  secession  and  dur- 
ing the  whole  civil  war,  while  the  theory  lias  been  constantly 
maintained  that  the  States  remained  States  of  the  Union, 
(Texas  v.  White,  7 Wall.,  700,)  and  although  all  the  seceded 
States  had  Legislatures  almost  constantly  in  session,  yet  no 
one  will  pretend  that,  had  these  Legislatures  elected  Sena- 
tors, such  would  have  been  received  by  the  Senate,  and  thus 
allowed  to  oppose  the  measures  which  were  resorted  for  the 
restoration  of  the  Union.  Such  Legislatures  did  pass  many 
laws  which  have  been  recognized  as  valid.  But  all  those 
which  were  in  violation  of  the  Constitution  and  laws  of  the 
United  States,  or  in  aid  of  the  rebellion,  have  been  regarded 
as  nullities.  Upon  the  same,  or  even  a higher  principle,  it 
must  be  conceded  that  elections  by  Legislatures  thus  consti- 
tuted were  not  Legislatures  having  the  right  of  election. 

After  the  close  of  the  war,  the  President  assumed  the 
power  of  revolutionizing  these  State  governments  through 
the  agencies  of  Provisional  Governors  and  the  instrumental- 
ities of  State  constitutional  conventions.  These  conventions 
recognized  the  destruction  of  slavery  by  the  war  power,  and 
provided  for  the  election  of  Legislatures  which  chose  Sena- 
tors. But  these  were  generally  refused  admission.  This 
must  have  been  upon  the  principle  of  the  invalidity  of  such 
Legislatures  for  the  purpose  of  choosing  Senators.  Or  we 
may  have  much  history  which  we  do  not  understand. 

Without  pausing  to  discuss  these  precedents,  others  have 
happened  less  reconcilable  with  principle.  In  Alabama  two 
bodies  organized,  claiming  to  be  rightful  Legislatures.  The 
Senate  had  to  decide  which  should  be  recognized,  and  it  ad- 
mitted the  Senator  whose  politics  coincided  with  a majority 
of  the  Senate.  In  Louisiana  the  Legislature  was  organized 
awd  a Governor  installed  through  the  forcible  inlluence  of 
the  army  of  the  United  States.  A Senator  was  elected ; and 


CHOSEN  BY  LEGISLATURES,  311. 


313 


Cl.  1.] 


that  imposed  the  necessity  of  looking  to  the  claims  of  the 
electing  body  to  be  a Legislature,  as  well  as  to  the  moral  fit- 
ness of  the  party  elected  under  the  circumstances  which  lie 
had  helped  to  create.  The  question  has  not  yet  been  settled. 

A history  of  the  Louisiana  affair  would  be  too  long  for  this 
book.  The  editor  would  find  in  it  no  defense  of  constitu- 
tional liberty. 

Mr.  Sykes  claims  the  seat  now  held  by  Hon.  Geoger  E. 
Spencer  as  Senator  from  the  State  of  Alabama,  upon  the 
assertion  that  the  body  claiming  to  be  the  Legislature  of  that 
State  which  elected  the  said  Spencer  was  not  the  rightful  Leg- 
islature, but  that  another  body  of  men  was  such  Legislature; 
and  that  the  latter  body,  on  the  10th  day  of  December,  A.  D. 
1872,  duly  elected  the' said  Sykes  to  be  the  Senator  of  the 
United  States  from  that  State  for  the  term  of  six  years,  com- 
mencing on  the  4th  day  of  March,  A.  D.  1873. 

It  is  a fact  that  there  were  two  bodies,  each  claiming  to 
be  the  Legislature  of  that  State,  and  the  question  is,  which  of 
these  two  bodies  ought  to  be  considered  the  rightful  Legisla- 
ture at  that  time  ? 

ktIn  the  opinion  of  your  committee  it  is  not  competent  for 
the  Senate  to  inquire  as  to  the  right  of  individual  members 
to  sit  in  a Legislature  whicli  is  conceded  to  have  a quorum  in 
both  houses  of  legally  elected  members.  But,  undoubtedly, 
the  Senate  must  always  inquire  whether  the  body  which  pre- 
tended to  elect  a Senator  was  the  Legislature  of  the  State  or 
not ; because  a Senator  can  only  be  elected  by  the  Legisla- 
ture of  a State.  In  this  case  Spencer  having  been  seated  by 
the  Senate,  and  being  prima  facie  entitled  to  hold  the  seat, 
the  Senate  cannot  oust  him  without  going  into  an  inquiry  in 
regard  to  the  right  of  the  individual  persons  who  claim  to 
constitute  the  quorum  in  these  respective  bodies  at  the  court- 
house and  at  the  State-house.  We  cannot  oust  Spencer  from 
his  seat  without  inquiring  and  determining  that  the  eight  or 
nine  individuals  who  were  elected  were  not  entitled  to  sit  in 
the  Legislature  of  the  State,  because  they  lacked  the  certifi- 
cates. But  if  the  Senate  can  inquire  into  this  question  at  all, 
it  must  certainly  inquire  for  the  fact  rather  than  the  evidence 
of  the  fact.  It  cannot  be  maintained  that  when  the  Senate 
has  been  compelled  to  enter  upon  such  an  examination  it  is 
estopped  by  mere  prima  facie  evidence  of  the  fact,  and  the 
certificate  is  conceded  to  be  nothing  more  than  prima  facie 
evidence.  But  the  Senate  must  go  back  of  that  to  the  fact 
itself,  and  determine  whether  the  persons  claiming  to  hold 
seats  were  in  fact  elected.  When  we  do  this  we  come  to  the 
conceded  fact  that  these  persons,  lacking  the  certificate,  had 
in  fact  been  elected,  and  that  the  persons  who  claimed  to  be 
the  quorum  of  the  two  houses  were  in  fact  the  persons  who, 
in  virtue  of  the  election,  were  entitled  to  constitute  the 
quorum  of  both  houses.”  (Senate  Report  No.  291.) 

In  the  case  of  Pinchback,  Mr.  Morton  reported  that  upon 


Alabama 
and  Louis- 
iana. 


Spencer’s 

case. 


Validity. 


When  may 
the  Senate 
inquire  in- 
to the 
validity  of 
the  legisla- 
ture? 


Name 
Pinch- 
back’^  case. 


314 


VACANCIES — CLASSES,  311. 


[Art.  I,  Sec.  3 


Kellogg’s 

govern- 

ment. 


Note  29. 


How  are 
the  Serfa- 
tors  classi- 
fied? 

Page  76, 
notes  31-34. 


the  certificate  of  election  by  Governor  Kellogg,  Mr.  Pinch- 
back  has  a prima  facie  title  to  admission  as  a member  of  the 
Senate,  and  that  whatever  objections  may  exist,  if  any,  as  to 
the  manner  of  his  election,  or  as  to  the  legal  character  of  the 
body  by  which  he  was  elected,  should  be  inquired  into  after- 
ward. This  was  denied  by  the  minority  of  the  committee, 
who  insisted  that  at  the  date  of  the  certificate  (15  January, 
1873)  William  P.  Kellogg  was  not  Governor  of  Louisiana, 
neither  de  jure  nor  de  facto,  and  for  this  they  cited  Henry  v. 
Lisle,  Andrew’s  Reports,  173;  Plymouth  v.  Painter,  17  Conn., 
588  ; People  v.  Collins,  7 Johns.,  549.  The}7,  insisted  that  at 
the  date  of  the  certificate  there  were  two  pretended  govern- 
ments in  operation  in  the  State  of  Louisiana,  of  which  W. 
P.  Kellogg  claimed  to  be  governor  of  one,  and  John  McEnery 
governor  of  the  other.  There  were  also  two  legislative  bodies, 
one  of  which  elected  Pinchback  and  the  other  W.  L.  McMil- 
lan. And  the  general  argument  was  to  prove  that  the  Kel- 
logg  government  was  an  usurpation  supported  by  the  military 
power  of  the  United  States,  while  that  headed  by  McEnery 
was  the  rightful  government.  Ko  decision  was  made  be- 
tween the  contestants  for  the  unexpired  term  to  fill  the 
vacancy  of  Kellogg.  The  contest  has  been  over  the  long 
term,  and  down  to  this  writing  no  decision  has  been  made. 
The  question  imposes  on  the  Senate  the  duty  to  determine 
whether  the  election  was  by  a lawful  Legislature  of  the  State. 
(Senate  Report,  626,  part  2.)  Pending  the  contest,  the  house 
of  the  Louisiana  Legislature  voted  for  Mr.  Eustis  in  separate 
session.  The  senate,  as  a body,  refused  to  vote.  The  two 
bodies  met  in  general  convention,  and  the  house  and  four 
senators  elected  Mr.  Eustis.  Governor  Kellogg  refused  to 
certify  the  fact  as  an  election.  Pinchback  not  entitled  to  a 
seat ; 9 Feb.,  1876. 

immediately  after  they  shall  be  assembled,  in 
Consequence  of  the  first  Election,  they  shall  be 
divided,  as  equally  as  may  be,  into  three  Classes. 
The  Seats  of  the  Senators  of  the  first  Class  shall  be 
vacated  at  the  Expiration  of  the  second  Year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year, 
and  of  the  third  Class  at  the  Expiration  of  the  sixth 
Year,  so  that  one-third  may  be  chosen  every  second 
Year;  and  if  Vacancies  happen  by  Resignation,  or 
otherwise,  during  the  Recess  of  the  Legislature  of 
any  State,  the  Executive  thereof  may  make  tempo- 
rary Appointments  until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such  Vacancies. 


Cl.  2.]  RESIGNATION  OR  OTHERWISE,  312-314.  315 


312.  “And  if  vacancies  happen.”  The  Governor  of 
Arkansas  appointed  Sevier,  in  contemplation  of  the  vacancy 
which  would  exist  after  the  expiration  of  his  term,  and  the 
Senate  sanctioned  the  appointment.  Sevier’s  Case,  1837,  1 
Contested  Elections,  604. 

The  principle  in  Lan man’s  Case  is  that  the  Legislature  of 
a State,  by  making  elections  themselves,  shall  provide  for  all 
vacancies  which  must  occur  at  stated  and  known  periods ; 
and  that  the  expiration  of  a regular  term  of  service  is  not 
such  a contingency  as  is  embraced  in  this  clause  of  the  Con- 
stitution. Sevier’s  Case,  Id.,  606.  These  two  cases  do  not 
appear  to  the  editor  to  be  reconcilable. 


313.  “By  resignation  or  otherwise.”  A Senator 
may  resign  prospectively ; that  is,  limit  the  time  when  his  res- 
ignation shall  take  effect ; whereupon  the  Legislature  may 
elect  to  fill  the  vacancy  which  has  not  “ happened.  ’ ’ And  if 
before  the  time  limited  by  the  resigning  Senator  he  die,  the 
Senator  elected  shall  take  his  seat.  Rusk’s  speech  in  Dixon’s 
Case,  1 Contested  Elections,  611 ; Congressional  Globe,  2d 
sess.,  32d  Cong.,  2193,  2196. 


314.  “Until  the  next  meeting  of  the  Legisla- 
ture, WHICH  SHALL  THEN  FILL  SUCH  VACANCIES.”  Ill 
practice,  the  next  meeting  of  the  Legislature  is  synonymous 
with  the  next  session  of  the  Legislature,  during  which  time 
the  member  under  executive  appointment  may  hold  his  seat, 
unless  it  shall  be  filled  by  an  election  before  the  termination 
of  a session.  This  is  probably  in  analogy  to  the  right  of  the 
President  “to  fill  up  all  vacancies  that  may  happen  during 
the  recess  of  the  Senate,  by  granting  commissions  which 
shall  expire  at  the  end  of  the  next  session.”  Phelps’s  Case, 
1 Contested  Elections,  617 ; Smith’s  Case,  (1809,)  Id..  616. 

But  if,  after  the  appointment  of  the  Governor,  the  Legis- 
lature meet  and  adjourn  without  holding  an  election  or  fill- 
ing the  vacancy,  the  commission  of  the  Governor  expires, 
and  he  can  sit  no  longer.  Williams’s  Case,  1 Contested 
Elections,  612;  Phelps’s  Case,  Id.,  613,  614. 

And  if  the  Legislature  meet  and  adjourn  before  the 
Governor  appoints,  the  Governor  has  no  right  to  appoint. 
Kensey  Johns’s  Case,  1794;  Phelps’s  Case,  1 Contested 
Elections,  616. 

The  sitting  member,  under  executive  appointment,  has  a 
right  to  occupy  his  seat  until  the  vacancy  shall  be  filled  by 
the  Legislature  of  the  State,  and  the  credentials  of  the  mem- 
ber so  elected  are  presented.  Smith’s  Case,  1809 ; Winthrop’s 
Case,  1 Contested  Elections,  607,  608,  31st  Cong.  2d  Sess.; 
Globe,  461-464;  Williams’s  Case,  (2  Aug.,  1854,)  1 Contested 
Elections,  612 ; Globe  of  33d  Cong.,  1st  sess.,  2201,  2208, 2211; 


How  do 
vacancies 
happen  in 
the  Sen- 
ate ? 

Note  307. 
31. 


Can  a Senar 
tor  resign 
prospect- 
ively ? 

Contradict- 
ory cases. 


What 
means  the 
meeting  of 
the  Legisla- 
ture? 


33. 


316 


THE  VICE  PRESIDENT,  315-317.  [Art.  I,  Sec.  3, 


References. 


What  are 
the  qualifi- 
cations of 
Senators? 
Page  77, 
note  35. 


Define  in- 
habitant ? 
Page  57, 
note  35. 


Why  was 
Shields  re- 
jected? 

35. 


Who  pre- 
sides over 
the  Senate  ? 
Page  76, 
notes  36, 37. 


How? 


What  are  its 
powers? 


Calhoun 
and  Adams. 


Phelps’s  Case,  (16  Jan.,  1854,)  1 Contested  Elections,  615-621; 
32  Globe,  part  1,  pp.  1,  58,  343,  466,  514,  515,  547,  549,  552, 
579,  584. 

3 No  Person  shall  be  a Senator  who  shall  not 
have  attained  to  the  Age  of  thirty  Years,  and  been 
nine  Years  a Citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

315.  uAn  inhabitant  of  that  State  for  which 
he  shall  be  chosen.”  General  Ames  was  the  commanding 
general  in  Mississippi,  subject  to  military  orders  under  the  re- 
construction laws,  when  he  was  chosen  Senator  of  Mississippi. 
In  a very  long  debate,  it  was  insisted  that  an  officer  of  the 
United  States  Army,  who  is  constantly  subject  to  superior 
orders,  cannot  be  an  inhabitant  of  a State  where  he  had 
never  before  resided,  within  the  meaning  of  this  clause.  But 
General  Ames  was  admitted  by  an  almost  strict  party  vote. 
Senate  Journal  and  Globe,  40th  Cong.,  2d  sess. 

316.  uAnd  been  nine  years  a citizen  of  the 
United  States.”  Shields  was  rejected  because  he  had  not 
been  naturalized  nine  years.  His  resignation  was  refused. 
1 Contested  Elections,  606 ; 40  Globe,  327,  332. 

4The  Vice  President  of  the  United  States  shall 
be  President  of  the  Senate,  but  shall  have  no  Vote, 
unless  equally  divided. 

3 IT.  Mr.  Calhoun  believed  that  he  had  no  power  to  call 
a Senator  to  order  for  words  spoken  in  debate ; that  is,  that 
he  had  no  inherent  powers. 

The  Chair  had  no  power  beyond  the  rules  of  the  Senate. 
It  would  stand  in  the  light  of  a usurper  were  it  to  attempt  to 
exercise  such  a power.  It  icastoo  high  a power  for  the  Chair. 
* * * The  Chair  would  never  assume  any 

power  not  vested  in  it ; but  would  ever  show  firmness  in  ex- 
ercising those  powers  that  were  vested  in  the  Chair.  (Con- 
gressional Debates,  1825-’26,  p.  759.) 

The  question  with  regard  to  the  powers  of  the  Chair  was 
transferred  from  the  Senate  chamber  to  the  public  press, 
where  it  was  discussed  with  memorable  ability.  An  article 
in  the  National  Intelligencer,  under  the  signature  of  Patrick 
Henry,  attributed  to  John  Quincy  Adams,  at  the  time  Presi- 


Cl.  3-5.]  PRESIDENT  PRO  TEMPORE,  317,  318. 


317 


dent,  assumed  that  the  powers  of  the  Vice  President,  in  call- 
ing to  order,  were  not  derived  from  the  Senate,  but  that  they 
came  strictly  from  the  Constitution  itself,  which  authorizes 
him  to  preside , and  that  in  their  exercise  the  Vice  President 
was  wholly  independent  of  the  Senate.  To  this  assumption 
Mr.  Calhoun  replied  in  two  articles,  under  the  signature  of 
Onslow,  where  lie  shows  an  ability  not  unworthy  of  the  emi- 
nent parliamentarian  whose  name  he  for  the  time  adopted. 
The  point  in  issue  was  not  unlike  that  now  before  us.  It 
was  insisted,  on  the  one  side,  that  certain  powers  were  inher^ 
ent  in  the  Vice  President,  as  presiding  officer  of  the  Senate, 
precisely  as  it  is  now  insisted  that  certain  powers  are  inherent 
in  the  Chief  Justice  when  he  becomes  presiding  officer  of  the 
Senate.  Mr.  Calhoun  thus  replied,  in  words  applicable  to 
the  present  occasion : 

u I affirm  that,  as  a presiding  officer,  the  Vice  President  has 
no  inherent  power  whatever,  unless  that  of  doing  what  the 
Senate  may  prescribe  by  its  rules  be  such  a power.  There  are, 
indeed,  inherent  powers,  but  they  are  in  the  body  and  not  in 
the  officer.  He  is  a mere  agent  to  exercise  the  will  of  the 
former.  He  can  exercise  no  power  which  he  does  not  hold 
by  delegation,  express  or  implied.”  (Calhoun’s  Life  and 
Speeches,  17.) 

Then  again  he  says,  in  reply  to  an  illustration  that  had 
been  employed : 

u There  is  not  the  least  analogy  between  the  rights  and  duties 
of  a judge  and  those  of  a presiding  officer  in  a deliberative 
assembly.  The  analogy  is  altogether  the  other  way.”  It  is 
between  the  court  and  the  house.  Ibid.,  20 ; Sumner’s  Speech, 
3 Trial  of  the  President,  291. 

This  view  of  Mr.  Calhoun  led  to  an  amendment  of  the  rules 
giving  the  powers  denied. 

The  following  is  necessary  to  complete  note  37  : Schuyler 
Colfax,  from  4 March.  1869,  to  4 March,  1873;  Henry  Wil- 
son, from  4 March,  1873,  to  22  November,  1875.  The  foll- 
owing Vice  Presidents  have  died  in  office  : George  Clinton, 
1812 ; Elbridge  Gerry,  1813 ; William  R.  King,  1853 ; Henry 
Wilson,  1875. 

5 The  Senate  shall  chuse  their  other  Officers,  and 
also  a President  pro  tempore,  in  the  Absence  of  the 
Yice  President,  or  when  he  shall  exercise  the  Office 
of  President  of  the  United  States. 


318.  “President  pro  tempore.”  The  following  have 
been  the  presiding  officers  of  the  Senate  since  the  completion 
of  the  table  in  the  first  edition.  The  following  is  necessary 
to  complete  note  38  : 


What  pow- 
ers has  he  ? 


Complete 
the  list  of 
Vice  Presi- 
dents? 


What  other 
officers 
does  the 
Senate 
choose  ? 

I 38. 


Complete 
the  list  of 
Presidents 
pro  tem- 
pore. 


318 


PRESIDENT  PRO  TEMPORE. 


Art.  I,  See.  3, 


List  of  pre- 
siding offi- 
cers. 


I 


What  prin- 
ciple was 
settled  aft- 
er the 
death  of 
Henry 
Wilson? 


Note  172. 


Names  of  Presidents  pro  tern - Attended . 

pore  of  the  Senate. 

Benjamin  F.  Wade 4 Mar.  1867. 

Henry  B.  Anthony 23  Mar.  1869. 

Henry  B.  Anthony 9 April  1869. 

Henry  B.  Anthony 28  May  1870. 

Henry  B.  Anthony 1 July  1870. 

Henry  B.  Anthony 14  July 

Henry  B.  Anthony 10  Mar.  1871. 

Henry  B.  Anthony 17  April  1871. 

Henry  B.  Anthony 22  May  1871. 

Henry  B.  Anthony 21  Dec.  1871. 

Henry  B.  Anthony 23  Feb.  1872. 

Henry  B.  Anthony 8 June  1872., 

Henry  B.  Anthony 4 Dee.  1872.. 

Henry  B.  Anthony 13  Dec.  1872. 

Henry  B.  Anthony 29  Dec.  1872.. 

Henry  B.  Anthony 24  Jan.  1873  . 

Matt.  H.  Carpenter.... 12  Mar.  1873.. 

Matt.  H.  Carpenter.... 26  Mar.  1873.. 

Matt.  H.  Carpenter.;..  11  Dec.  1873  . 

Matt.  H.  Carpenter.... 23  Dec.  1874.. 

Henry  B.  Anthony 25  Jan.  1875.. 

Henry  B.  Anthony 15  Feb.  1875., 

Thomas  W.  Ferry 9 Mar.  1875.. 

Thomas  W.  Ferry 19  Mar.  1875.. 


..3 

.29 

.22 

..3 

..6 


Retired. 

Mar.  1869 
Mar.  1869 
Apr.  1869 
June  1870 
July  1870 


1870 15  July  1870 


.10 
.10 
.27 
.21 
.26 
.10 
. 9 
.13 
..6 


.26 

.23 

...5 

..1 

.17 

.11 


Mar.  1871 
May  1871 
May  1871 
Dec.  1871 
Feb.  1872 
June  1872 
Dec.  1872 
Dec.  1872 
Jan.  1873 
24  Jan.  1873 
14  Mar.  1873 
Mar.  1873 
June  1874 
Jan.  1875 
Feb.  1875 
Feb.  1875 
Mar.  1875 


Vice  President  Henry  Wilson  died  at  Washington  on  22 
November,  1875.  It  will  be  seen  that  Mr.  Ferry  had  been 
elected  presiding  officer  at  the  special  session  of  the  Senate 
of  the  44th  Congress.  The  question  was  immediately  set 
afloat  as  to  the  effect  of  the  death  of  the  Vice  President  upon 
Mr.  Ferry.  Some  contended  that  his  office  was  vacated  by 
the  death  ; others  that  it  was  vacated  by  the  reassembling  of 
Congress  in  regular  session;  others  that  by  the  death  the 
presiding  officer,  ipso  facto , became  the  acting  Vice  Presi- 
dent, and  held  the  office  beyond  the  control  of  the  Senate. 
The  editor  reviewed  the  subject  in  the  Chronicle  of  25 
December,  1875,  and  reciting  the  4th  and  5tli  clauses,  art.  II, 
sec.  1,  cl.  5,  and  note  172,  and  the  contradictory  precedents 
cited  in  notes  38  and  316,  as  well  as  the  salary  act,  (Rev. 
Stat.,  sec.  77,)  which  gives  Mr.  Ferry  the  Vice  President’s 
salary,  he  inclined  to  the  opinion  that  were  the  question  new 
Mr.  Ferry  would  hold  beyond  the  control  of  the  Senate.  To 
Remove  any  apprehension  as  to  the  possible  contingency  of 
the  death  of  the  President,  a resolution  of  Senator  Edmunds 
had  been  passed,  declaring  Ferry  the  presiding  officer  until 
further  action  by  the  Senate.  Mr.  Edmunds  aiso  introduced 
a resolution  for  a new  election,  to  be  held  on  the  7th  of 
January,  1876.  This  resolution  was  referred  to  the  Com- 
mittee on  Elections.  On  6 January  Mr.  Morton  reported  in 
behalf  of  the  committee. 


Cl.  5,  6.] 


IMPEACHMENTS,  319. 


319 


The  report  carefully  reviews  the  history  of  every  election 
for  President  pro  tempore  since  the  foundation  of  the  Govern- 
ment, and  arrives  at  the  following  conclusions : 

“ Resolved , That  the  tenure  of  a President  pro  tempore  of 
the  Senate,  elected  at  one  session,  does  not  expire  at  the 
meeting  of  Congress  after  the  first  recess,  the  Vice  President 
not  having  appeared  to  take  the  chair. 

“ That  the  death  of  the  Vice  President  does  not  have  the  ef- 
fect to  vacate  the  office  of  President  jpro  tempore  of  the  Senate. 

“That  the  office  of  President  pro  tempore  of  the  Senate  is 
held  at  the  pleasure  of  the' Senate. 

“ That  the  Hon.  Thomas  W.  Ferry,  the  Senator  from  Mich- 
igan, who  was  elected  President  pro  tempore  of  the  Senate  at 
the  last  session,  is  now  the  President  pro  tempore , by  virtue 
of  said  election.” 

The  first  two  resolutions  were  unanimously  adopted,  and, 
on  the  motion  of  Mr.  Thurman,  time  was  given  for  considera- 
tion of  the  third. 

January  12,  after  debate,  Mr.  White  offered  an  amendment 
to  the  third  resolution:  “Until  the  happening  of  the  con- 
tingency provided  for  in  the  9th  section  of  the  act  of  Con- 
gress approved  March  1,  1792,  when  he  is  authorized  to 
act  as  President  of  the  United  States;”  which  was  rejected. 
Mr.  Morton’s  third  resolution  was  then  passed — yeas  34,  nays 
15.  The  fourth  resolution  was  then  withdrawn.  When  Mr. 
Cox  (February  17,  1875)  was  appointed  or  elected  Speaker 
pro  tempore  of  the  House,  in  place  of  Mr.  Kerr,  who  was  ab- 
sent, Mr.  Garfield  moved  that  the  oath  of  office  should  be 
administered  to  him.  It  was  objected  to  and  shown  that  Mr. 
Dent,  in  1798,  was  twice  elected  and  the  oath  of  office  was 
not  administered  to  him.  And  also  that  in  1848,  after  de- 
bate, the  House  had  refused  to  require  the  Speaker  pro  tem , 
(Mr.  Burt)  to  take  the  oath.  So  it  was  stated  upon  authority 
that  the  presiding  officer  of  the  Senate  has  never  been  re- 
quired to  take  the  oath.  After  full  debate,  the  motion  of 
Mr.  Garfield  was  refused  by  a very  large  majority.  Congres- 
sional Record,  Feb.  18,  1876. 

6 The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  Oath  or  Affirmation.  When  the  Presi- 
dent of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside:  and  no  Person  shall  be  convicted 
without  the  Concurrence  of  two  thirds  of  the  Mem- 
bers present. 


Resolu- 

tions. 


Note  172. 


Who  tries 
impeach- 
ments ? 
Page  81, 
Note  39. 


319,  “Shall  HAVE  THE  SOLE  POWER  TO  TRY  ALL  Give  the 
impeachments.”  Impeachment  is  an  institution  avowedly  history  of 


820 


IMPEACHMENTS,  319. 


[Art.  I,  Sec.  3, 


impeach- 
ments in 
the  House 
of  Lords. 

321. 


In  England. 


adopted  by  the  United  States  from  the  practice  of  England. 
In  Mr.  T.  Erskine’s  “Practical  Treatise  on  the  Law,  Privi- 
leges, Proceedings,  and  Usage  of  Parliament,”  it  is  declared 
that  “in  impeachments  the  Commons,  as  the  great  repre- 
sentative inquest  of  the  nation,  first  find  the  crime,  and  then, 
as  prosecutors,  support  their  charge  before  the  Lords ; while 
the  Lords,  exercising  at  once  the  functions  of  a high  court  of 
justice  and  of  a jury,  try  and  adjudicate  the  charge  prefer- 
red.” Substitute  House  of  Representatives  for  “the  Com- 
mons ” and  Senators  for  “ the  Lords,”  and  we  come  precisely 
to  the  condition  under  our  Constitution. 

The  first  impeachment  by  the  House  of  Commons  of  Eng- 
land at  the  bar  of  the  House  of  Lords  was  in  the  year  1376, 
in  the  reign  of  Edward  III.  During  the  next  four  reigns 
there  were  frequent  impeachments,  but  not  one  in  the 
reign  of  Edward  IY,  Henry  VII,  Henry  VUE,  Edward  VI, 
Mary,  or  Elizabeth.  Obnoxious  subjects  were  dealt  with  in 
that  interval  by  the  readier  and  shorter  mode  of  bills  of  at- 
tainder, or  of  pains  and  penalties,  or  by  prosecutions  in  the 
Star  Chamber.  The  practice  of  impeachment  was  revived 
in  the  reign  of  James  I.  Sir  Giles  Mompesson  and  Lord 
Chancellor  Bacon  were  impeached  in  1620,  and  from  that 
year  to  the  revolution  of  1688  there  were  forty  cases  of  im- 
peachment— fifteen  in  the  reigns  of  William  III,  Queen  Anne, 
and  George  I ; onty  one  (that  of  Lord  Lovat  for  high  treason) 
in  the  reign  of  George  II ; and,  in  that  of  George  III,  that 
of  Warren  Hastings,  which  lasted  from  February  13,  1788  to 
April  25,  1795,  and  of  Lord  Melville,  treasurer  of  the  navy, 
which  was  begun  on  April  29,  and  ended  on  June  12,  1806. 
Hastings  and  Melville  were  respectively  acquitted.  The  Duke 
of  York,  second  son  of  George  III,  was  virtually  tried  by  the 
House  of  Commons,  but  not  impeached,  from  January  27  to 
March  20,  1809,  on  charges  of  permitting  his  patronage  as 
commander-in-chief  of  the  army  to  be  sold ; and  Queen  Caro- 
line, wife  of  George  1Y,  was  tried,  by  bill  of  pains  and  pen- 
alties, before  the  House  of  Lords,  (but  not  by  impeachment,) 
from  July  5 to  November  10,  1820. 

The  House  of  Commons  reserves  the  right  to  prefer  further 
articles  from  time  to  time.  The  accused  is  generally  attached 
and  retained  in  custody.  The  whole  question  of  impeach- 
ment, as  expounded  in  Hallam’s  Constitutional  History  of 
England,  and  May’s  Parliamentary  Practice,  Is  extremely 
interesting,  and  particularly  worthy  of  attentive  study. 
(Washington  Chronicle , March  21,  1868.) 

The  Senate  does  not  sit  as  a court,  or  in  the  exercise  of 
judicial  power,  for  that  is  committed  to  certain  courts.  Sen- 
ator Sumner,  3 Trial  of  the  President,  248. 

The  House  of  Lords,  when  sitting  in  the  trial  of  impeach- 
ments, has  never  been  called  a court.  Id.,  249.  This  is 
supported  by  the  next  clause,  which  limits  the  judgment  to 
removal  from  office,  and  leaves  the  party  subject  to  trial  and 


TO  TRY  IMPEACHMENTS,  320,  321. 


321 


Cl.  6.] 


punishment.  (1  Story’s  Com.,  § 805.)  3 Trial  of  the  Presi- 
dent, 249. 

The  power  of  the  Chief  Justice  to  decide  incidental  ques- 
tions is  three  times  denied  in  the  Constitution  : First,  when 
it  is  declared  that  the  Senate  alone  shall  try  impeachments  ; 
secondly,  when  it  is  declared  that  members  only  shall  con- 
vict; and  thirdly,  when  it  is  declared  that  the  Chief  Justice 
shall  preside , and  nothing  more,  thus  conferring  upon  him 
those  powers  only  which  by  parliamentary  law  belong  to  a 
presiding  officer  not  a member  of  the  body.  Senator  Sumner, 
3 Trial  of  the  President,  294. 

320.  Challenges  and  presiding  officers.  No 
challenges  lie  against  senators.  Butler’s  Speech,  Trial  of  the 
President,  89-95. 

The  expression,  “The  sole  power,”  as  the  Senate  will 
doubtless  agree,  necessarily  means  the  only  power.  It  in- 
cludes everything  pertaining  to  the  trial.  Every  judgment 
that  must  be  made  is  a part  of  the  trial,  whether  it  be  upon 
a preliminary  question  or  a final  question.  It  seems  to  me 
that  the  words  were  incorporated  in  the  Constitution  touch- 
ing this  procedure  in  impeachment  in  the  very  light  of  the 
long-continued  usage  and  practice  in  Parliament.  It  is  set- 
tled, in  the  very  elaborate  and  exhaustive  report  of  4he  Com- 
mons of  England  upon  the  Lords’  Journals,  that  the  peers 
alone  decide  all  questions  of  law  and  fact  arising  in  such  a 
trial.  Manager  Bingham  in  1 Trial  of  the  President,  180. 

The  Senate  must  determine  every  incidental  question 
which,  by  possibility,  can  control  the  ultimate  judgment  of 
the  Senate.  (Lord  Melville’s  Trial ; Trial  of  Warren  Hastings, 
8 Burke,  42 ; 4 Institute,  15  ; Chase’s  Trial,  3 Benton’s  De- 
bates.) Bingham’s  Speech,  1 Trial  of  the  President,  180, 181. 

That  it  is  a trial ; that  it  is  classed  as  a crime ; that  the 
Senators  try  under  oath  ; that  they  find  the  facts  and  pro- 
nounce judgment,  prove  that  the  Senate  sits  as  a court,  gov- 
erned by  the  statute  and  common  law.  Curtis,  1 Trial  of  the 
President,  409-411. 

He  insisted  that  while  the  Chief  Justice  shall  preside,  the 
trial  is  to  be  by  the  Senate,  and  the  judgment  to  be  upon  the 
votes  of  members  of  the  Senate,  of  whom  the  Chief  Justice 
is  not.  u To  preside  ” is  to  be  merely  the  presiding  officer, 
which  is  a synonym  of  speaker  or  prolocutor.  He  is  merely 
the  voice  of  the  house ; its  speaker.  This  is  the  definition  ac- 
cording to  parliamentary  law,  to  which  we  must  look  for  the 
definition  of  words.  (4  Coke’s  Institutes,  15.)  Senator  Sum- 
ner, 3 Trial  of  the  President,  283.  * 

321.  “To  TRY  ALL  mPEACHMENTS.”  The  articles  must 
sufficiently  advise  the  accused  of  what  is  intended  to  be  proved. 
The  Senate  cannot  admit  evidence  of  another  distinct  fact  in 
order  to  sustain  a fact  charged.  Thus,  under  the  charge  that 
in  violation  of  the  tenure-of-office  law  the  President  appointed 


What  is  the 
power  of 
the  Chief 
Justice? 


321. 


What 
means  the 
sole  power? 


321. 


What  is  ne- 
cessary to 
the  trial  ? 


322 


Trial. 


Give  the 
history  of 
Johnson’s 
case. 


Stanton’s 

removal. 


State  the4 
oath  ? * 


CHIEF  JUSTICE  PRESIDES,  322,  323.  L Art. I, Sec. 3, 

an  ad  interim  Secretary  of  War,  “with  intent  unlawfully  to 
control  the  disbursement  of  moneys  appropriated  for  the  mili- 
tary service  and  for  the  Department  of  War,”  it  was  not  al- 
lowed to  prove  that  he  appointed  an  Assistant  Secretary  of 
the  Treasury  for  that  purpose.  (1  Trial  of  the  President,  258- 
268.) 

The  House,  on  the  22 d of  February,  reported  a resolution 
through  the  Judiciary  Committee  that  “Andrew  Johnson  be 
impeached  of  high  crimes  and  misdemeanors.”  On  the  21st 
the  Senate  had  sent  a resolution  to  the  President  refusing  to 
concur  in  the  suspension  of  the  Secretary  of  War.  On  the 
22d  the  President  sent  a message  to  the  Senate  saying  that 
he  had  removed  the  Secretary  of  War  and  appointed  a Secre- 
tary ad  interim . The  House  resolutions  were  debated  and 
voted  on  the  22d.  The  articles  were  prepared  and  agreed  to 
on  the  24th.  On  the  same  day  the  President  sent  a message 
to  the  Senate  giving  his  reasons  for  removing  the  Secretary 
of  War.  This  message  was  offered  in  evidence  : Held , that 
it  was  inadmissible  to  admit  this  statement  made  by  the 
President  after  he  was  impeached.  1 Trial  of  the  President, 
537-545. 

But  the  President  was  allowed  to  prove  that  he  did  acts 
showing  that  he  intended  to  get  up  a law  case  to  test  his 
power  in  the  courts.  Id.,  597-623.  But  he  was  not  allowed 
to  prove  his  statements  as  to  his  intention  being  to  make  a 
temporary  appointment  until  he  sent  a good  name  to  the  Sen- 
ate. 1 Trial  of  the  President,  258-t268. 

322.  “When  sitting  fob  that  purpose  they  share 
be  on  oath  or  affirmation.  ’ ’ The  oath  was  administered 
by  Mr.  Justice  Nelson,  the  senior  associate  justice  of  the  Su- 
preme Court  of  the  United  States,  to  Chief  Justice  Chase  in 
the  following  words : 

“I  do  solemnly  swear  that  in  all  things  appertaining  to 
the  trial  of  the  impeachment  of  Andrew  Johnson,  President 
of  the  United  States,  I will  do  impartial  justice  according  to 
the  Constitution  and  the  laws  : so  help  me  God.”  1 Trial  of 
the  President,  11. 

The  same  oath  was  administered  to  the  Senators  by  the 
Chief  Justice.  For  rules  governing  the  trial  of  impeach- 
ments, 1 Trial  of  the  President,  11-15. 

The  President  appeared  by  counsel,  and  not  in  person. 
Id.,  18,  19. 

A motion  to  postpone  until  the  rebel  States  should  be  rep- 
resented was  rejected — yeas  2,  nays  49.  Id.,  36. 

When  Mr.  Wade,  the  presiding  officer,  presented  himself, 
Mr.  Hendricks  objected  on  the  ground  of  his  interest.  After 
a long  debate  the  objection  was  withdrawn.  3 Id.,  360- 
401. 


How  does 


323.  “ When  the  President  of  the  United  States 


DEBATE,  323. 


323 


Cl.  6.] 


IS  TRIED,  THE  CHIEF  JUSTICE  SHADE  PRESIDE.”  Upon  the 
trial  of  the  President,  General  Thomas  being  under  examina- 
tion, Mr.  Stanbery  objected  to  a question  of  Manager  Butler, 
as  being  illegal  evidence,  when  the  folio  wing  proceedings  took 
place : 

The  Chief  Justice.  The  Chief  Justice  thinks  the  testi- 
mony is  competent,  and  it  will  be  heard  unless  the  Senate 
thinks  otherwise. 

Mr.  Drake.  I suppose,  sir,  that  the  question  of  the  com- 
petency of  evidence  in  this  court  is  a matter  to  be  determ- 
ined by  the  Senate,  and  not  by  the  presiding  officer  of  the 
court.  The  question  should  be  submitted,  I think,  sir,  to 
the  Senate.  I take  exception  to  the  presiding  officer  of  the 
court  undertaking  to  decide  a point  of  that  kind. 

The  Chief  Justice.  The  Chief  Justice  is  of  opinion  that 
it  is  his  duty  to  decide  preliminarily  upon  objections  to  evi- 
dence. If  lie  is  incorrect  in  that  opinion  it  will  be  for  the 
Senate  to  correct  him. 

Mr.  Drake.  I appeal,  sir,  from  the  decision  of  the  chair, 
and  demand  a vote  of  the  Senate  upon  the  question. 

Mr.  Fowler.  Mr.  Chief  Justice,  I beg  to  know  what  your 
decision  is. 

The  Chief  Justice.  The  Chief  Justice  states  to  the  Sen- 
ate that,  in  his  judgment,  it  is  his  duty  to  decide  upon  ques- 
tions of  evidence  in  the  first  instance,  and  that  if  any  Sena- 
tor desires  that  the  question  shall  then  be  submitted  to  the 
Senate,  it  is  his  duty  to  submit  it.  So  far  as  he  is  aware,  that 
has  been  the  usual  course  of  practice  in  trials  of  persons  im- 
peached in  the  House  of  Lords  and  in  the  Senate  of  the 
United  States. 

Mr.  Drake.  My  position,  Mr.  President,  is  that  there  is 
nothing  in  the  rules  of  this  Senate,  sitting  upon  the  trial  of 
an  impeachment,  which  gives  that  authority  to  the  Chief 
Justice  presiding  over  the  body. 

Mr.  Fessenden.  The  Senator  is  out  of  order. 

Mr.  Johnson.  I call  the  honorable  member  from  Missouri 
[Mr.  Drake]  to  order.  The  question  is  not  debatable  in  the 
Senate. 

. Mr.  Drake.  I am  not  debating  it;  I am  stating  my  point 
of  order. 

The  Chief  Justice.  The  Senator  will  come  to  order. 

Mr.  Manager  Butler.  If  the  President  please,  is  not  this 
question  debatable  ? 

The  Chief  Justice.  It  is  debatable  by  the  managers  and 
counsel  for  the  defendant ; not  by  Senators. 

After  some  remarks  by  Manager  Butler,  the  Chief  Jus- 
tice explained  his  position,  claiming  the  right  on  constitu- 
tional grounds — that  is,  that  as  presiding  officer  of  the  Senate 
he  might  decide  incidental  questions,  subject  to  correction 
by  the  Senate. 


When  does 
the  Chief 
Justice  pre- 
side? 

317,  318,  322. 


Drake. 


The  Chief 
Justice. 


324 


DEBATE,  323.  [Art.  I.  Sec.  3, 


Butler. 


How  shall 
the  body  be 
addressed  ? 


History. 


Sumner. 


How  was 
the  ques- 
tion finally 
decided? 


Mr.  Butler  was  proceeding  to  controvert  the  position 
when — 

The  Chief  Justice.  Mr.  Manager,  the  Chief  Justice  has 
no  doubt  of  the  right  of  the  honorable  managers  to  propose 
any  question  they  see  fit  to  the  Senate,  but  it  is  for  the  Sen- 
ate itself  to  determine  how  a question  shall  be  taken. 

Mr.  Manager  Butler.  I understand  the  distinction.  It 
is  a plain  one.  The  managers  may  propose  a question  to  the 
Senate,  and  the  Chief  Justice  decides  it,  and  we  then  cannot 
get  the  question  we  propose  before  the  Senate  unless  through 
the  courtesy  of  some  Senator.  I think  I state  the  position 
with  accuracy;  and  it  is  the  one  to  which  we  object,  I again 
say,  respectfully,  as  w^e  ought,  but  firmly,  as  we  must. 

Mr.  Butler  proceeded  to  argue  that  all  questions  of  law 
and  fact  were  to  be  decided  by  the  Senate,  who  were  the 
judges,  and  not  by  the  presiding  officer.  He  cited  the  trial 
of  Lord  Stafford  in  1680 ; the  Earl  of  Cardogan’s  Case,  in 
1840;  the  trial  of  Lord  Delemere,  when  Jeffries  presided. 

Mr.  Bingham  insisted  that  the  seventh  rule  did  not  change 
the  precedents. 

But  on  a motion  to  adjourn,  there  being  a tie,  the  Chief 
Justice  gave  the  casting  vote,  and  the  Senate  adjourned* 
(Id.,  276.)  During  the  whole  progress  of  the  trial,  the  man- 
agers of  the  House  and  most  of  the  Senators  addressed  the 
presiding  officer  as  “Mr.  President,”  and  the  court  as  “Mr. 
President  and  Senators,”  while  the  counsel  of  the  President, 
upon  all  motions  and  objections,  addressed  “Mr.  Chief  Jus- 
tice,” and  the  court  as  “Mr.  Chief  Justice  and  Senators.” 

[On  the  first  March,  1870,  Mr.  Drake  moved  an  amendment 
to  the  appropriation  bill  for  judges,  which  denied  that  there 
was  any  such  office  as  “Chief  Justice  of  the  United  States,” 
and  he  said  that  during  the  impeachment  trial  Chief  Justice 
Chase  assumed  that  title.  The  amendment  passed  the  Sen- 
ate. Globe  and  Journal  of  that  day.  41st  Cong.  It  is  a little 
remarkable  that  the  word  “ Chief  Justice  ” is  only  mentioned 
in  this  clause  of  the  Constitution.  But  lie  is  called  in  the  ju- 
diciary and  other  acts  the  Chief  Justice  of  the  Supreme  Court.] 

Mr.  Sumner  assumed  that  under  the  power  “to  try  all  im- 
peachments the  Senate  is  the  sole  judge  of  every  question  of 
law  and  fact.” 

The  Senators  retired,  and  after  several  propositions  to  the 
effect  that  the  Chief  Justice  had  no  power  to  decide  any  ques- 
tion of  law  had  been  voted  down,  the  following  amendment 
of  the  seventh  rule  was  agreed  upon  and  reported  to  the  Sen- 
ate, sitting  as  a court  : 

M The  presiding  officer  of  the  Senate  shall  direct  all  neces- 
sary preparations  in  the  Senate  chamber,  and  the  presiding 
officer  of  the  trial  shall  direct  all  the  forms  of  proceeding  while 
the  Senate  are  sitting  for  the  purpose  of  trying  an  impeach- 
ment, and  all  forms  during  the  trial  not  otherwise  specially 
provided  for.  And  the  presiding-officer  of  the  trial  may  rule 


sumner’s  speech,  324. 


325 


Cl.  6.' 


all  questions  of  evidence  and  incidental  questions,  which  The  rule, 
ruling  shall  stand  as  the  judgment  of  the*  Senate,  unless 
some  member  of  the  Senate  shall  ask  that  a formal  vote  be 
taken  thereon,  in  which  case  it  shall  be  submitted  to  the 
Senate  for  decision,  or  he  may,  at  his  option,  in  the  first  in- 
stance, submit  any  such  question  to  a vote  of  the  members  of 
the  Senate.” 

Thus,  for  the  first  time,  and  it  is  to  be  hoped  for  the  last, 
it  was  settled  how  the  “Chief  Justice  shall  preside.”  Trial 
of  the  President,  p.  175-186,  277. 

324.  Although  the  debate  and  vote  of  the  Senators  upon  What  were 
the  power  of  the  Chief  Justice  were  in  secret,  Mr.  Sumner  Sumner’s 
published  his  speech,  from  which  we  copy  some  extracts : vieW32i. 

“The  presiding  officer  can  only  give  his  opinion  or  argue 
when  he  is  a member  of  the  House. 

“ The  position  of  the  speaker  of  the  House  of  Lords  is  some- 
what anomalous,  for  though  he  is  the  president  of  a delibera- 
ative  assembly,  he  is  invested  with  no  more  authority  than 
any  other  member ; and  if  not  himself  a member , his  office 
is  limited  to  the  putting  of  questions  and  other  formal  proceed- 
ings. (May,  Parliamentary  Practice,  220,  chap.  7.) 

44  Mr.  May  goes  still  further,  and  lets  us  know  that  it  is  only 
as  a member  of  the  House  that  the  presiding  officer  can  ad- 
dress it,  even  on  points  of  order . 

“Upon  poihts  of  order  the  speaker,  if  a peer,  may  address 
the  House,  but  as  his  opinion  is  liable  to  be  questioned,  like 
that  of  any  other  peer,  he  does  not  often  exercise  the  right.” 

(Page  220.) 

4 4 Thus,  even  if  a peer — even  if  a member  of  the  upper  House 
— the  presiding  officer  cannot  rule  a point  of  order  nor  address 
the  House  upon  it,  except  as  any  other  member ; and  what  he 
says  is  open  to  question,  like  the  utterance  of  any  other 
member.  Such  is  the  conclusion  of  the  most  approved  Eng- 
lish authority. 

44  American  writers  on  parliamentary  law  concur  with  the  How  far  do 
English.  Cushing,  who  has  done  so  much  to  illustrate  this  writers 
whole  subject,  says  of  the  presiding  officer  of  the  lords  that  concur? 

4 he  is  invested  with  no  more  authority  for  the  preservation 
of  order  than  any  other  member,  and  if  not  a member,  his 
office  is  limited  to  the  putting  of  questions  and  other  formal 
proceedings;  if  he  is  a peer,  he  may  address  the  House  and 
participate  in  the  debate  as  a member.’  He  then  says  again, 

4 if  a peer,  he  votes  with  the  other  members ; if  not,  he  does 
not  vote  at  all;'1  and  he  adds,  4 there  is  no  casting  vote  in  the 
lords'  (§  288.)  This  statement  was  made  long  after  the 
adoption  of  the  national  Constitution,  and  anterior  to  the 
present  controversy. 

4 4 There  are  occasions  when  the  lords  have  a presiding  ofR-  who  pre- 
cer,  called  a lord  high  steward.  This  is  on  the  trial  of  a peer,  sides  on 
whether  upon  impeachment  or  indictment.  Here  again  we  ^peer?1  °f 
find  the  same  rule  stated  by  Edmund  Burke,  in  his  masterly  p r ' 


326 


SUMNER’S  SPEECH,  324.  [Art.  I,  Sec.  3, 

Sumner,  report  to  the  House  of  Commons  on  the  impeachment  of 
Warren  Hastings.  These  are  his  words  : 

“ ‘ Every  peer  present  at  the  trial  and  every  temporal  peer 
hath  a right  to  be  present  in  every  part  of  the  proceeding, 
t 0UHdphe  v°teth  upon  every  question  of  law  and  fact;  and  the  question 
celior  pre^1"  *s  carried  hy  the  major  vote,  tlie  lord  high  steward  himself 
side  with-  voting  merely  as  apeer  and  member  of  that  court , in  common  with 
out  being  a the  rest  of  the  peers , and  in  no  other  riqht .’  (Burke’s  Works, 
peer*  vol.  6,  512,  Bohn’s  edition.) 

‘Tn  another  place  the  report,  quoting  the  Commons’  journal, 
says : 

“ ‘ That  the  lord  high  steward  was  but  as  a speaker  or  chair- 
man for  the  more  orderly  proceeding  at  the  trial.’  (Id.,  515.) 

44  In  our  day  there  have  been  instances  where  the  lord  chan- 
cellor sat  as  presiding  officer  without  being  a peer.  Broug- 
ham took  his  seat  on  the  22d  November,  1830,  before  his 
patent  as  a peer  had  been  made  out,  and  during  this  interval 
his  energies  were  suppressed  while  he  was  simply  presiding 
officer,  and  nothing  else.  The  same  was  the  case  with  that 
eminent  lawyer,  Sir  Edward  Sugden,  who  sat  as  presiding 
officer  on  the  4th  of  March,  1852,  although  he  was  still  a com- 
moner ; and  it  was  also  the  case  with  Sir  Frederick  Thesiger, 
who  sat  as  presiding  officer  on  the  1st  March,  1858,  although 
he  was  still  a commoner.  These  instances  attest  practically 
the  prevalance  of  the  early  rule  down  to  our  day.  Even 
Brougham,  who  never  shrank  from  speech  or  from  the  exer- 
cise of  power,  was  constrained  to  bend  to  its  exigency.  He 
sat  as  lord  chancellor,  and  in  that  character  put  the  question  ; 
but  this  was  all  until  he  became  a member  of  the  House. 
Lord  Campbell  expressly  records  that  while  his  name  ap- 
pears in  the  entry  of  those  present  on  the  22d  November, 
1830,  as  Henricus  Brougham , Cancellarius , ‘he  had  no  right 
to  debate  and  vote  till  the  following  day,’  when  the  entry  of 
his  name  and  office  appears  as  Dominus  Brougham  et  Vaux , 
Cancellarius . 

“I  pass  from  these  examples  of  recent  history,  and  go  back 
to  the  rule  as  known  to  our  fathers  at  the  adoption  of  the 
Constitution.  On  this  head  the  evidence  is  complete.  It  will 
be  found  in  the  State  Trials  of  England,  in  parliamentary 
history,  and  in  the  books  of  law,  but  it  is  nowhere  better 
exhibited  than  in  the  Lives  of  the  Chancellors,  by  Lord 
Campbell,  himself  a member  of  the  House  of  Lords  and  a 
chancellor,  familiar  with  it  historically  and  practically.  He 
has  stated  the  original  rule,  and  in  his  work,  which  is  as  in- 
teresting as  voluminous,  has  furnished  constantly-recurring 
illustrations  of  it.  In  the  introduction  to  his  Lives,  where 
he  describes  the  office  of  chancellor,  Lord  Campbell  enunci- 
ates the  rule,  which  I give  in  his  own  words : 

u ‘ Whether  peer  or  commoner,  the  chancellor  is  not,  like  the 
speaker  of  the  Commons,  moderator  of  the  proceedings  of 
the  House  in  which  he  seems  to  preside.  He  is  not  addressed 


sumner’s  speech,  325. 


Cl.  6.] 


327 


in  debate ; he  does  not  name  the  peer  who  is  to  be  heard ; Sumner. 
he  is  not  appealed  to  as  an  authority  on  points  of  order;  and 
he  may  cheer  the  sentiments  expressed  by  his  colleagues  in 
the  ministry.’  Campbell’s  Lives  of  Chancellors,  vol.  1,  p.  17. 

“ The  existing  rules  of  the  Senate  have  added  to  these 
powers ; but  such  is  the  rule  with  regard  to  the  presiding 
officer  of  the  House  of  Lords,  even  when  a peer . He  is  not 
appealed  to  on  points  of  order.  If  a commoner,  his  power  is 
still  less. 

“ 4 If  he  be  a commoner,  notwithstanding  a resolution  of  the  When  no 
House  that  he  is  to  be  proceeded  against  for  any  misconduct  vo  e’ 
as  if  he  were  a peer,  he  has  neither  vote  nor  deliberative  voice , 
and  he  can  only  put  the  question  and  communicate  the  resolu- 
tions of  the  House  according  to  the  directions  he  receives,''  ” (Id.) 

Mr.  Sumner  reviewed  the  whole  history  of  trials  in  Eng- 
land, to  show  that  these  were  the  general  rules ; that  is,  that 
a presiding  officer  who  is  not  a member  can  neither  speak 
nor  decide,  from  which  he  deduced  as  follows  : 

“The  conclusion  is  irresistible  that,  when  our  fathers  pro-  What  is  the 
vided  that  on  the  trial  of  the  President  of  the  United  States  sion? 

‘the  Chief  Justice  shall  preside, ’ they  used  the  term  ‘pre- 
side ’ in  the  sense  it  had  already  acquired  in  parliamentary 
law,  and  did  not  intend  to  attach  to  it  any  different  significa- 
tion ; that  they  knew  perfectly  well  the  parliamentary  dis- 
tinction between  a presiding  officer  a member  of  the  House 
and  a presiding  officer  not  a member;  that  in  constituting 
the  Chief  Justice  presiding  officer  for  a special  temporary 
purpose,  they  had  in  view  similar  instances  in  the  mother 
county,  when  the  lord  keeper,  chief  justice,  or  other  judicial 
personage  had  been  appointed  to  4 preside  ’ over  the  House 
of  Lords,  of  which  he  was  not  a member,  as  our  Chief  Justice 
is  appointed  to  preside  over  the  Senate,  of  which  he  is  not  a 
member ; that  they  found  in  this  constantly-recurring  ex- 
ample an  apt  precedent  for  their  guidance ; that  they  fol- 
lowed this  precedent  to  all  intents  and  purposes,  using,  with 
regard  to  the  Chief  Justice,  the  received  parliamentary  lan- 
guage that  he  shall  ‘preside,’  and  nothing  more;  that, 
according  to  this  precedent,  they  never  intended  to  impart 
to  the  Chief  Justice,  president  pro  tempore  of  the  Senate, 
any  other  powers  than  those  of  a presiding  officer,  not  a 
member  of  the  body  ; and  that  these  powers,  as  exemplified 
in  an  unbroken  series  of  instances  extending  over  centuries, 
under  different  kings  and  through  various  administrations, 
were  simply  to  put  the  question  and  to  direct  generally  the 
conduct  of  business,  without  undertaking  in  any  way,  by 
voice  or  vote,  to  determine  any  question  preliminary,  inter- 
locutory, or  final.” 

We  lose  the  benefit  of  the  arguments  of  other  Senators  in 
secret  session,  because  they  were  not  published. 

325.  On  the  motion  to  retire  for  consultation  there  was  What  was 

the  vote  ? 


328 


TRIAL  OF  ANDREW  JOHNSON,  326.  Art.  I,  Sec.  3, 


A tie. 


How  many 
Senators 
must  con- 
cur? 


How  stood 
the  vote  on 
the  trial? 


a tie  in  the  Senate,  and  the  Chief  Justice  gave  the  casting 
vote.  On  the  1st  of  April  Mr.  Sumner  offered  the  following 
resolution : 

4 4 It  appearing  on  the  reading  of  the  journal  of  yesterday 
that,  on  a question  where  the  Senate  was  equally  divided, 
the  Chief  Justice,  presiding  on  the  trial  of  the  President, 
gave  the  casting  vote,  it  is  hereby  declared  that,  in  the  judg- 
ment of  the  Senate,  such  vote  was  without  authority  of  the 
Constitution  of  the  United  States.” 

But  it  was  decided  in  the  negative — yeas  21 ; nays  27. 
(1  Trial  of  the  President,  187.) 

326.  4 ‘And  no  person  shall  be  convicted  with- 
out THE  CONCURRENCE  OF  TWO-THIRDS  OF  THE  MEMBERS 
present.”  Upon  the  trial  of  Andrew  Johnson,  all  the  Dem- 
ocratic Senators  and  six  Republican  Senators  voted  for  the 
acquittal.  All  the  other  Republican  Senators  voted  guilty. 
Consequently,  as  will  be  seen,  the  vote  stood — “guilty,”  35, 
“ not  guilty,”  19.  A change  of  one  vote  would  have  secured 
a* conviction.  By  an  order  of  the  Senate,  the  Xlth  article  of 
the  charges  by  the  House,  which  gave,  as  inducement,  the 
President’s  speech  of  18  August,  1866,  to  a committee  from 
the  Philadelphia  Convention,  in  which  he  denied  the  consti- 
tutional existence  of  Congress,  and  then  proceeded  to  the 
charge  that,  in  violation  of  the  tenure-of-office  law,  he  re- 
moved Edwin  M.  Stanton,  &c.,  <fcc.,  was  tried  first.  The 
result  was  as  follows  : 

Guilty— Me^rs.  Anthony,  Cameron,  Cattell,  Chandler, 
Cole,  Colliding,  Conness,  Corbett,  Cragin,  Drake,  Edmunds, 
Ferry,  Frelinghuysen,  Harlan,  Howard,  Howe,  Morgan, 
Morrill  of  Maine,  Morrill  of  Vermont,  Morton,  Nye,  Patter- 
son of  Mew  Hampshire,  Pomeroy,  Ramsey,  Sherman, 
Sprague,  Stewart,  Sumner,  Thayer,  Tipton,  Wade,  Willey, 
Williams,  Wilson,  and  Yates— 35. 

Not  guilty — Messrs.  Bayard,  Buckalew,  Davis,  Dixon, 
Doolittle,  Fessenden,  Fowler,  Grimes,  Henderson,  Hen- 
dricks, Johnson,  McCreery,  Norton,  Patterson  of  Tennessee, 
Ross,  Saulsbury,  Trumbull,  Van  Winkle,  and  Vickers — 19. 
2 Trial  of  the  President,  488,  489,  16  May,  1870. 

The  result  having  been  announced  by  the  Chief  Justice, 
the  Senate  then  adjourned  the  trial  for  ten  days. 

On  26  May,  1868,  votes  were  taken  upon  the  second  and 
third  articles,  with  the  same  result,  after  which  the  Senate 
adjourned,  without  any  vote  having  been  taken  upon  the 
remaining  articles. 

So  the  whole  trial  was  upon  the  removal  of  the  Secretary 
of  War,  and  the  appointment  of  Lorenzo  M.  Thomas  ad 
interim , contrary  to  the  law  regulating  the  tenure  of  office. 
Opinions  were  filed  by  thirty  Senators,  as  follows  : 

Mesf*rs.  Buckalew,  Cattell,  Davis,  Doolittle,  Edmunds, 
Ferry,  Fessenden,  Fowler,  Frelinghuysen,  Grimes,  Harlan, 


THE  CONCLUSION,  327. 


329 


Cl.  6.] 


Henderson,  Hendricks,  Howard,  Howe,  Johnson,  Morrill  of  Opinions. 
Maine,  Morrill  of  Vermont,  Patterson  of  Yew  Hampshire, 

Pomeroy,  Sherman,  Stewart,  Sumner,  Tipton,  Trumbull, 

Van  Winkle,  Vickers,  Williams,  Wilson,  Yates. 

32?.  The  Conclusion.  It  may  be  assumed  from  the  What  con- 
arguments  that  the  thirteen  Democratic  Senators  (including  from°the 
Mr.  Van  Winkle)  held  that  there  could  be  no  impeachment,  arguments 
except  for  treason,  bribery,  or  a statutory  felony  or  misde- 
meanor— that  is,  a crime  against  the  United  States,  prescribed 
and  defined  by  act  of  Congress.  Hence,  all  these  Senators 
would  have  sustained  a demurrer  or  a motion  in  arrest  of 
j udgment  to  every  charge.  They  admitted  no  offenses  against 
good  morals  merely ; no  common-law  offenses ; no  parliament- 
ary precedent  impeaching  for  merely  political  offenses,  or 
bad  behavior.  This  was  not  the  ground  of  Senators  Fessen- 
den or  Trumbull,  two  Republican  leaders,  who  voted  for  the 
acquittal.  It  is  not  in  accordance  with  any  of  the  preceding 
impeachment  trials,  nor,  indeed,  is  it  the  general  opinion  of 
constitutional  lawyers. 

It  may  also  be  assumed  that  all  the  Democratic  Senators,  What  is  to 
and  also  Senator  Fowler,  held  that  the  tenure-of-office  law  from  the6d 
was  unconstitutional;  that  the  right  to  remove  by  the  Presi-  opinions? 
dent,  without  the  power  of  Congress  to  restrain  him,  was  a 
constitutional  power,  pure  and  simple,  and  one  that  could 
not  be  controlled  by  Congress ; for  that,  the  debate  and  the 
law  of  1789  so  settled  it.  But  this  view  was  not  held  by  Mr. 

Fessenden  nor  Mr.  Trumbull.  They  held  that  the  act  of 
1795,  for  temporary  appointments,  was  still  in  force ; that, 
in  the  absence  of  any  restraining  law  provided  by  Congress, 
the  President  m a y remove  cabinet  officers;  that  Mr.  Stan- 
ton, not  having  been  appointed  by  President  Johnson,  he  was 
not  protected  by  the  tenure-of-office  law  of  1867,  and  hence 
his  removal  was  neither  a crime  nor  a violation  of  the  Con- 
stitution. This  latter  consideration,  and  the  benefit  of  doubts, 
saved  the  President.  The  thirty-five  who  voted  for  convic- 
tion maybe  said  to  have  denied  the  right  of  removal,  as  a con- 
stitutional right  of  the  President.  They  believed  the  power 
to  be  subject  to  legislative  control,  and  also  that  Mr.  Stanton 
was  within  the  purview  of  the  law  of  1867.  They  also  be- 
lieved that  high  crimes  and  misdemeanors  are  not  necessarily 
statutory,  but  they  may  consist  of  those  things  which  render 
an  incumbent'  morally  unfit  to  exercise  the  trust  confided  to 
him. 

The  trial  is  very  valuable  in  settling  questions  of  practice,  what  was 
and  because  it  exhausts  the  whole  learning  upon  the  subject 
of  impeachment.  It  is  unfortunate  that  it  leaves  the  def-  crimes^nd 
initions  of  “high  crimes  and  misdemeanors”  still  open,  misde- 
although  it  must  be  admitted  that  the  weight  of  authority  is  i ? 

with  the  majority.  And  it  may  be  said  that  a judgment  of 
impeachment  may  rest  upon  the  finding  of  such  facts  as 


330 


IMPEACHMENTS,  328. 


[Art.  I,  Sec.  3, 


Misde- 

meanors. 


What  is  the 
judgment 
in  cases  of 
impeach- 
ment? 

Page  82, 
note  40. 


Gen.  Lo- 
gan’s view. 


show  such  moral  depravity  and  unfitness  for  the  duties  of 
office  as  render  it  dangerous  to  the  State  that  the  party 
should  be  longer  intrusted  with  its  exercise.  Such,  at  any 
rate,  are  the  English  parliamentary  precedents,  to  which  the 
framers  of  the  Constitution  had  reference  in  the  use  of  the 
word  impeachment . So  the  course  of  legislation,  as  disclosed 
in  the  trial,  may  be  said  to  have  settled  that  Congress  may 
restrict  the  power  of  removal,  as  has  been  done  as  to  mili- 
tary and  certain  treasury  officers.  So  Congress  may  pre- 
scribe a penalty  against  improper  removals.  This  does  not 
seem  to  violate  the  general  axiom  that  the  power  of  removal 
is  an  incident  to  the  power  to  appoint.  For  the  President 
can  complete  no  appointment  without  the  advice  and  con- 
sent of  the  Senate.  Therefore,  if  the  right  rested  upon  that 
axiom  merely,  the  consent  of  the  Senate  would  have  to  be 
given  to  the  removal  as  well  as  to  the  appointment.  Full 
references  are  given  by  the  editor  to  the  arguments  and 
opinions  of  the  Senators.  It  can  hardly  be  said  that  the 
precedent  determines  anything  except  that  the  necessary 
two-thirds  did  not  vote  for  the  conviction.  And  even  had 
conviction  been  had  by  the  united  vote  of  the  Republicans, 
perhaps  the  country  would  have  attributed  the  result  to 
political  considerations — particularly  after  the  Chicago  Con- 
vention resolved  that  u Andrew  Johnson  was  rightfully  im- 
peached.” Possibly  a case  may  never  arise  where  any  other 
force  would  be  given  to  the  impeachment  of  the  President. 


7Judgment  in  Cases  of  Impeachment  shall  not 
extend  further  than  to  Removal  from  Office,  and  Dis- 
qualification to  hold  and  enjoy  any  Office  of  Honor, 
Trust,  or  Profit  under  the  United  States;  but  the 
Party  convicted  shall  nevertheless  be  liable  and  sub- 
ject to  Indictment,  Trial,  Judgment,  and  Punish- 
ment, according  to  Law. 

328.  “ Judgment  in  cases  of  impeachment  shall 

NOT  EXTEND  FURTHER  THAN  TO  REMOVAL  FROM  OFFICE.” 
It  was  argued  by  Manager  Logan  that,  as  every  officer  except 
the  President  and  Vice  President  were  removable  by  some 
superior  power  for  mere  political  objections,  or  for  misbe- 
havior or  misconduct  not  indictable,  and  as  the  judgment 
may  stop  with  removal  from  office,  and  must  stop  with  re- 
moval and  disqualification,  that  the  President  may  be  removed 
for  whatever  misbehavior  the  House  finds  to  be  ground  of  im- 
peachment, and  the  Senate  decides  to  be  sufficient  ground  of 
impeachment,  as  insanity;  for  that  he  holds  u dum  sebene 
gesserit .”  2 Trial  of  the  President,  23. 

% 


4 


I 


Cl.  1.]  TIMES,  PLACES,  329.  331 

As  to  how  far  the  evidence  must  sustain  the  charges,  Id.,  Logan. 
269-276. 

Under  the  general  practice  in  impeachments,  judgment  is  when  is 
never  given  by  the  House  of  Peers  until  demanded  by  the  judgment 
House  of  Commons.  (Manager  Butler.)  1 Trial  of  the  Pres-  given? 
ident,  589. 


Section  4.  1 The  Times,  Places,  and  Manner  of  whepre- 

scribes  tbe 

holding  Elections  for  Senators  and  Representatives,  times," 
shall  be  prescribed  in  each  State  by  the  Legislature  manner’of 
thereof : but  the  Congress  may  at  any  Time  by  Law  page^ ? 
make  or  alter  such  Regulations,  except  as  to  the  note 
Places  of  chusing  Senators. 


329.  “The  times,  places.”  The  conventions  of  Vir-  Give  the 
ginia,  Massachusetts,  New  Hampshire,  New  York,  Rhode  history  of 
Island,  and  South  Carolina,  accompanied  their  ratifications  t ause* 
with  a protest  against  the  exercise  of  this  power;  and  North 
Carolina  refused  its  ratification  because  it  existed.  The  Dis- 
tricting Controversy,  Douglas  Rep.,  15  March,  1842 ; Con- 
tested Elections,  50-52. 

It  was  intended  that  the  power  should  remain  exclusively  The  power 
with  the  Legislatures,  subject  to  the  condition  only  that  £j^n’ 
Congress  might  alter  the  State  regulations  or  make  new 
ones,  in  the  event  the  State  should  refuse  to  act  in  the  prem- 
ises, or  should  legislate  in  such  manner  as  would  subvert  the 
rights  of  the  people  to  a free  and  fair  representation.  Doug- 
las’ Rep.,  Id.,  51.  But  see  Madison’s  views,  Garrett  Davis’ 

Report  in  the  same  case,  Id.,  58 ; and  Hamilton’s  views,  Id., 

59.  The  power  of  Congress  is  discretionary.  59.  Con- 
gress may  alter  or  make  the  regulations.  Id.,  60;  1 Bartlett, 

47-55  ; American  Election  Law,  §§  105,  106. 

The  questioh  again  came  before  the  House  upon  the  manda- 
tory clause  in  the  apportionment  law  of  1872.  Mr.  Trescott,  of 
South  Carolina,  presented  a memorial  to  the  House,  stating  and 
showing  that  in  the  act  of  South  Carolina  to  redistrict  the  State 
the  third  district  of  South  Carolina  was  not  ^contiguous  terri- 
tory,” but  one  county  was  separated  by  two  others  interven- 
ing between  the  sixth  and  the  seventh.  On  15  January,  1876, 

Mr.  Trescott  addressed  the  House  committee,  after  due  notice 
had  been  given  to  all  the  representatives  from  South  Caro- 
lina. Mr.  Trescott  reviewed  the  general  ticket  question  of 
1842,  (28th  Congress,)and  the  more  recent  case  of  Phelps  and 
Cavanaugh,  of  Minnesota.  1 Bartlett,  148.  The  discussions 
among  members  of  the  committee  went  back  to  the  original 
interpretation  of  the  respective  powers  of  the  State  and  of 
Congress.  But  the  real  question  is,  as  it  was  in  1842,  as  to 


332 


ELECTIONS,  330. 


Art.  I,  Sec.  4, 


Mandatory. 

What  of  the 
manner  ? 


What  is  the 
legislature  ? 


Are  con- 
ventions 
such  ? 


the  effect  of  disregarding  the  mandatory  section  of  the  act  of 
Congress  requiring  districting  and  prescribing  the  mode. 

44 And  manner  of  holding  elections.”  Prior  to  the 
act  of  Congress  given  in  the  notes  the  mode  of  electing  Sen- 
ators was  left  to  the  Legislature.  And  different  modes  ex- 
isted in  different  States.  Yulee  v.  Mallory,  3 Contested  Elec- 
tions, 608,  609.  And  the  same  diversities  existed  as  to  the 
numbers  required  to  elect  Representatives.  Id.,  609;  Ap- 
pendix to  Congressional  Globe,  1st  sess.  31st  Cong.,  1170, 
1176. 

33©.  44  Shall  be  prescribed  by  the  Legislature 
thereof.”  After  the  act  of  secession  by  the  convention  of 
Virginia,  in  1861,  a convention  from  thirty  nine  counties  as- 
sembled at  Wheeling  on  the  11th  June,  1862,  and,  on  the  19th 
of  the  same  month,  adopted  44  an  ordinance  for  the  reorganiza- 
tion of  the  State  government.”  This  ordinance  provided  for  a 
Legislature,  which  assembled  and  elected  Senators,  and  as- 
sumed all  the  functions  of  legislation.  After  the  Legislature 
had  been  some  time  in  session,  on  the  20th  August,  1861, 
the  convention  provided  for  an  election  for  members  of 
Congress  from  districts  not  represented.  Dawes’  Report,  20 
Jan.,  1862, 3 Contested  Elections,  427,  428.  After  quoting  this 
clause,  the  report  said:  4 4 It  is  a •legislative  act.  It  is  law. 
When  there  is  a Legislature  in  session,  all  laws  shall  originate 
in  it.  They  cannot  originate  anywhere  else.”  (Id.,  429.)  And 
again:  “A  new  government  must  begin  somewhere,  and 
there  must  be  somebody  to  make  it.  As  necessity  was  the 
foundation,  so  also  it  was  the  limit,  of  the  power  called  into 
being  for  the  sole  purpose  of  inauguratinga  new  government. 
It  could  do  anything  necessary  to  carry  out  that  purpose,  and 
when  that  was  done  it  could  do  no  more.  Its  functions  ceased 
the  moment  the  new  government  took  on  form  and  life.  The 
two  cannot,  in  the  nature  of  things,  exist  and  move  pari  pas- 
su.” (Dawes’ Report  in  Segar’s  Case,  3 Contested  Elections, 
429.) 

The  principle  may  be  correct,  that  after  the  convention 
calls  a new  government  into  the  exercise  of  power  its  own 
functions  cease.  But  all  general  declarations,  and,  indeed, 
precedents,  during  revolutionary  times,  are  to  be  received 
with  reference  to  the  particular  cases,  and  not  as  applicable 
to  other  circumstances.  The  legislative  acts,  other  than  for 
the  mere  purpose  of  calling  into  existence  the  new  government, 
have  been  ordained  by  conventions  and  sanctioned  as  law. 
Stewart  v.  Crosby,  15  Tex.,  548;  Causici  v.  La  Coste,  20 
Tex.,  285;  Cowan  v.  Hardeman,  26  Tex.,  216;  Paschal's 
Annot.  Dig.,  76,  77,  note  215;  Id.,  712,  art.  4631a;  Cun- 
ningham v.  Perkins,  28  Tex.,  488. 

Mr.  Segar,  in  his  case,  contended  that  a convention  of  the 
people  possessed  plenary  powers,  and  that  “by  the  Legisla- 
ture,”  might  mean  a convention  of  the  people.  3 Contested 


LEGISLATURE,  330,  331. 


333 


Cl.  1] 


Elections,  433.  Mr.  Noel  showed  that  the  convention  of 
Missouri  set  aside  a secessionist  Governor  and  Legislature, 
and  itself  remained  the  only  legislative  body  in  that  State. 
Id.,  434. 

Mr.  Crittenden  urged  that  a convention  is  clothed  with 
sovereign  powers  in  the  State,  and  that  it  might  prescribe  the 
times,  places,  and  manner  of  electing  Representatives  in  the 
State  constitution,  and  that  this  would  be  by  the  Legislature 
thereof,  in  the  highest  sense  of  the  term.  The  object  was 
to  give  the  State  the  power  of  conducting  these  elections, 
and  that  the  people  may  speak  through  a convention  as  well 
as  through  a legislature.  3 Contested  Elections,  435 ; Same 
speech,  46  Globe,  753;  see  the  Debate,  46  Globe,  733-755. 

As  the  decision  sustained  the  report  of  Mr.  Dawes,  it  may 
be  taken  as  a precedent,  that  the  House  being  in  session,  the 
convention  could  not,  at  the  same  time,  prescribe  the  time  of 
election,  without  settling  the  question  of  the  general  power 
of  a convention  to  legislate.  In  Wells  v.  Bain,  75  Penn.  R., 
all  legislative  power,  and  all  power  beyond  proposing  a con- 
stitution to  the  people,  was  denied. 

331.  “The  Times.”  That  the  military  governor  of  the 
State  fixed  the  time  on  a day  different  from  that  prescribed  for 
the  regular  election  was  not  sufficient  cause  to  defeat  repre- 
sentation. Flander’s  and  Hahn’s  Case,  3 Feb.  1863,  Contested 
Elections,  438.  In  this  case  it  was  urged  that  as  the  regular  elec- 
tion failed  because  of  secession,  and  the  Governor  and  people 
being  engaged  in  the  rebellion,  the  people  who  acknowledged 
their  allegiance  to  the  United  States  should  not  be  defeated  of 
representation,  because  there  was  no  legislative  power  to  fix  a 
time.  Mr.  Bingham  ably  argued  that  as  the  time  had  neither 
been  fixed  by  the  Legislature  nor  by  Congress,  but  only 
by  a military  governor,  it  was  not  an  election  under  the  Con- 
stitution. Id.,  453,  454;  same  speech,  47  Globe,  p.  862. 

The  debate  has  much  interest.  47  Globe,  831,  855,  861, 
866  ; 48  Globe,  1011-1030.  But  the  precedent,  like  the  func- 
tions of  the  military  governor,  grew  out  of  the  necessity  of 
the  case. 

Where  the  proclamations  of  the  commanding  general  and 
the  military  governor  disregarded  the  constitution  and  laws 
of  Virginia,  the  member  was  refused  his  seat.  Cloud  v.  King, 
3 Contested  Elections,  455,  affirmed  23d  February,  1863  ; 
Graffliu’s  Case,  3 Contested  Elections,  464 ; Hawkins’s  Case, 
Id.,  436;  McKenzie  v.  Kitchen,  Id.,  468. 

The  State  not  having  been  divided  into  congressional  dis- 
tricts, as  required  by  the  apportionment  upon  the  census  of 
1860,  the  Representatives  were  refused  their  seats.  Field’s 
Case  of  Louisiana,  25  January,  1854,  3 Contested  Elections, 
580.  After  the  convention  districted  the  State,  Benzaro  was 
allowed  to  take  his  seat.  Id.,  583 


Conven- 

tions. 


Crittenden. 


Who  may- 
fix  the 
time? 


334 


CONGRESS,  332. 


[Art.  1,  Sec.  4 


What  is  the 
power  of 
Congress  ? 


Define  to 
“ alter.” 


88. 


What  day 
has  been 
fixed? 


When  shall 
Congress 
assemble? 
Page  83, 
notes  42,  43 


332.  uBut  the  Congress  may  at  any  time,  by 

LAW,  MAKE  OR  ALTER  SUCH  REGULATIONS,  EXCEPT  AS 
TO  THE  PLACES  OF  CHUSING  SENATORS.” 

To  alter,”  imports  a greater  power  than  any  other 
term,  except  to  make,  or  its  synonym.  It  is  to  strike  from, 
add  to,  or  modify.  Garrett  Davis,  3 Contested  Elections,  61. 
The  power  of  Congress  is  as  broad  as  that  of  a State,  Id. 
And  Congress  ma}T  alter  and  make  uniform  regulations  for 
the  choice  of  Senators.  Or  an  uniform  time  for  choosing 
Representatives.  Id.,  61. 

These  reports  and  the  debates  during  that  session  exhausted 
the  subject.  Neither  report  was  fully  agreed  to.  But  as 
the  law  in  question  only  declared  that  the  members  should 
be  elected  by  districts,  but  made  no  provision  for  districting, 
the  power  was  said  not  to  have  been  exercised,  and  the  mem- 
bers elected  from  four  States  by  general  ticket  were  allowed 
to  retain  their  seats.  3 Contested  Elections,  47-69;  Con- 
gressional Globe,  vol.  13,  parts  1 and  2.  The  States  after- 
wards districted,  and  the  controversy  ended.  In  the 
41st  Congress,  2d  session,  the  House  passed  a bill  fixing  an 
uniform  time,  without  much  debate.  The  power  is  now’ 
generally  conceded  except  by  the  extreme  men,  who  believe 
that  the  power  of  Congress  is  dormant  until  the  States  refuse 
to  act. 

The  States  may  district  their  States,  and  may  redistrict 
them,  without  waiting  for  a new  apportionment.  It  is  a 
matter  within  the  discretion  of  the  Legislatures.  It  is  con- 
ceded that  Congress  could  by  law  have  exclusively  determ- 
ined the  extent  of  each  district,  and  enacted  that  it  should 
remain  unchanged,  under  the  apportionment,  during  the 
entire  period  of  ten  years.  But  this  has  not  been  done  by 
the  act  of  25  June,  1852,  which  is  only  commendatory.  3 
Contested  Elections,  (Jared  Davis,)  Perkins’  Case,  143. 

The  Tuesday  next  after  the  first  Monday  in  November,  1876, 
and  on  the  same  day  every  two  years  thereafter,  is  established 
as  the  day  for  the  election  of  Kepresentatives  and  Delegates 
in  Congress.  Act  of  2 February,  1872,  § 11,  17  Stat.,  p.  29 ; 
Rev.  Stat.,  sec.  25. 

2 The  Congress  shall  assemble  at  least  once  in 
every  Year,  and  such  Meeting  shall  be  on  the  first 
Monday  in  December,  unless  they  shall  by  Law  ap- 
point a different  Day. 


335 


Cl.  2.]  CONGRESS,  333. 


S33.  Statement  of  the  beginning  and  ending  of  each  legisla- 
tive session  of  Congress,  from  1789  to  1876. 


Congress. 

1st 

1st. 

1st 

2d.. 

1st 

3d.. 

2d 

1st. 

2d 

2d.., 

3d 

1st., 

3d  

1st 

4th 

2d  .. 

4th 

2d-. 

5th 

1st 

5th 

2d  •• 

5th 

3d  .. 

6th 

1 st 

6th 

2d 

7th 

1st 

7th. 

2d  .. 

8th 

1st 

8th 

2d 

9th 

1st 

9th 

2d 

10th 

1 st 

10th 

2d 

11th 

1st 

11th 

2d 

11th 

3d 

12th 

1st 

12th 

2d 

13th 

1st 

13th 

2d  . 

13th 

3d 

14th 

1st 

14th 

2d 

15th 

1st 

15th 

2d  ., 

16th 

1st 

16th 

2d  . 

17th 

1st 

17th 

2d  .. 

18th 

1st 

18th 

2d  .. 

19  th 

1st 

19th 

2d .. 

20th 

1st 

20th 

2d  .. 

21st 

1st 

21st 

2d., 

22d 

1st 

22d 

2d ., 

23d 

1st. 

23d 

2d  ., 

24th 

1st. 

24th 

2d  .. 

25th 

1st. 

25th 

2d ., 

25th 

3d . 

26th 

1st 

26th 

2d  ., 

27th 

1st., 

Session. 


Began. 


March  4,  1780. 
January  4, 1790. 
December  6, 1790. 
October  24, 1791. 
November  5, 1792. 
December  2, 1793. 
November  3,  1794. 
December  7,  1795. 
December  5, 179G. 
May  15, 1797. 
November  13, 1797. 
December  3, 1798. 
December  2,  1799. 
November  17,  1800. 
December  7, 1801. 
December  6,  1802. 
October  17, 1803. 
November  5, 1804. 
December  2, 1805. 
December  1, 1806. 
October  26,  1807. 
November  7, 1808. 
May  22, 1809. 

November  27, 1809. 
December  3,  1810. 
November  4, 1811. 
November  2, 1812. 
May  24,  1813. 

December  6, 1813. 
September  19, 1814. 
December  4,  1815. 
December  2, 1816. 
December  1, 1817. 
November  16, 1818. 
December  6, 1815. 
November  13, 1820. 
December  3, 1821. 
December  2, 1822. 
December  1, 1823. 
December  6, 1824. 
December  5,  1825. 
December  4, 1826. 
December  3,  1827. 
December  1,  1828. 
December  7, 1829. 
December  6, 1830. 
December  5, 1831. 
December  3, 1832. 
December  2, 1833. 
December  1,  1834. 
December  7, 1835. 
December  5, 1836. 
September  4, 1837. 
December  4, 1837. 
December  3, 1838. 
December  2, 1839. 
December  7, 1840. 
May  31, 1841. 


Ended. 


Sept. 

29, 1789. 

August 

12,  1790. 

March 

3,  1791. 

May 

8,  1792. 

March 

2,  1793. 

June 

9, 1794. 

March 

3, 1795. 

June 

1,1796. 

March 

3, 1797. 

J uly 

10, 1797. 

July 

16,  1798. 

March 

3,  1799. 

May 

14,  1800. 

March 

3,  1801. 

May 

3, 1802. 

March 

3,  1803. 

March 

27, 1804. 

March 

3,  1805. 

April 

21,  1806. 

March 

3,  1807. 

April 

25,  1808. 

March 

3,  1809. 

June 

28,  1809. 

May 

1, 1810. 

March 

3,  1811. 

July 

6,  1812. 

March 

3,  1813. 

August 

2,  1813. 

April 

18, 1814. 

March 

3,  1815. 

April 

30, 1816. 

March 

3, 1817. 

April 

20,  1818. 

March 

3,  1819. 

May 

15,  1820. 

March 

3,  1821. 

May 

8, 1822. 

March 

3,  1823. 

May 

27,  1824. 

March 

3, 1825. 

May 

22,  1826. 

March 

3,  1827. 

May 

26,  1828. 

March 

3, 1829. 

May 

31, 1830. 

March 

3,  1831. 

July 

16,  1832. 

March 

2,  1833. 

June 

30,  1834. 

March 

3,  1835. 

July 

4,  1836. 

March 

3, 1837. 

October 

16,  1837. 

July 

9,  1838. 

March 

3,  1839. 

July 

21, 1840. 

March 

3,  1841. 

Sept. 

13,  1841. 

When  have 
been  ses- 
sions? 


[Art.  I,  Sec.  4, 


336 


"Regular 

sessions. 


CONGRESS,  333. 

Statement , fyc.— Continued. 


Congress. 


27  th.. 

27  th.. 

28  th. 
28th.. 
29th.. 

29  th.. 
30th.. 

30  th.. 
31st.. 
31st... 
32d... 
32d ... 
33d... 
33d ... 
34th.. 
34th.. 
34th.. 
35th.. 
35th.. 
36th.. 
36th.. 
37th.. 
37th.. 
37th.. 

38  th.. 
38th.. 
39th.. 

39  th.. 
40th.. 
40th.. 
40th.. 
41th.. 
41st... 
41st... 
42d  ... 
42d ... 
42d ... 
43d... 
44th  . 


Session. 

Began. 

2d 

December  6, 1841. 

3d 

December  5, 1842. 

1st 

December  4,  1843. 

2d 

December  2, 1844. 

1st 

December  1, 1845. 

2d 

December  7, 1846. 

1st 

December  6,- 1847. 

2d 

December  4,  1848. 

1st 

December  3,  1849. 

2d 

December  2, 1850. 

1st 

December  1, 1851. 

2d  

December  6, 1852. 

1st 

December  5, 1853. 

2d 

December  4,  1854. 

1st 

December  3, 1855. 

2d 

August  21, 1856. 

3d 

December  1, 1856. 

1st 

December  7, 1857. 

2d 

December  6, 1858. 

1st 

December  5, 1859. 

2d 

December  3, 1860. 

1st 

July  4, 1861. 

2d 

December  2, 1861. 

3d 

December  1,  1862. 

1st 

December  7,  1863. 

2d . . 

December  5, 1864. 

1st 

December  4, 1865. 

2d 

December  3, 1866. 

1st 

March  4, 1867. 

2d 

December  2, 1867. 

3d 

December  7, 1868. 

1st 

March  4, 1869. 

2d 

December  6, 1869. 

3d 

December  5, 1870. 

1st 

March  4, 1871. 

2d 

December  4,1871. 

3d 

December  2,  1872. 

1st 

December  1, 1873. 

1st 

December  6, 1875. 

Ended. 


August 

March 

June 

March 

August 

March 

August 

March 

Sept. 

March 

August 

March 

August 

March 

August 

August 

March 

June 

March 

June 

March 

August 

July 

March 

July 

March 

July 

March 

March 

Nov. 

March 

April 

July 

March 

April 

June 

March 

June 


31,  1842. 
3, 1843. 
17, 1844. 

3,  1845. 
10, 1846. 
3,  1847. 
14, 1848. 
3,  1849. 

30,  1850. 
3,  1851. 

31,  1852. 
3, 1853. 
7,  1854. 
3,  1855. 

18,  1856. 
30,  1856. 
3,  1857. 

14,  1858. 
3,  1859. 

25,  1860. 
3,  1861. 
6,  1861. 
17,  1862. 

3,  1863. 

4,  1864. 
3,  1865. 

28,  1866. 
3,  1867. 
30,  1867. 
10,  1868  * 
3, 1869. 
10,  1869. 

15,  1870. 
3, 1871. 

20, 1871. 
10,  1872. 
4, 1873. 
23,  1874. 


special^es-  statement  °f  the  beginning  and  ending  of  each  special  session 

sionsof  the 
Senate  ? 


of  the  Senate , from  1789  to  1868. 


Began. 

March  4,  1791 
March  4,  1793 


Ended. 

March  4,  1791. 
March  4,  1793. 


♦This  2d  session  of  the  40th  Congress  was  begun  2d  December,  1867, 
was  adjourned  27th  July,  1868,  to  meet  21st  September,  1868;  met  on  that 
day,  and,  on  the  same  day,  was  adjourned  to  meet  on  16th  October,  1868. 
Met  on  that  day,  and  on  the  same  day  was  again  adjourned  to  meet  10th 
November,  1868;  met  on  that  day,  and  was  then  adjourned  without  day. 
The  law  set  out  in  note  43,  page  84,  has  been  repealed,  so  that  Congress 
has  but  two  sessions,  commencing,  of  course,  on  the  first  Monday  in 
December,  of  each  year.  It  expires  on  the  fourth  of  March.  The  ex- 
istence of  a Congress  is,  in  fact,  fifteen  months.  I do  not  find  that  the 
law  defining  the  sessions  has  been  transferred  to  the  Revised  Statutes. 


CONGRESS,  333. 


337 


Cl.  2: 


Began. 

June  8,  1795. 
March  4,  1797. 
July  17,  1798. 
March  4,  1801 . 
March  4,  1809. 
March  4,  1817. 
March  4,  1825. 
March  4,  1829. 
March  4,  1837. 
March  4,  1841. 
March  4,  1845. 
March  5,  1849. 
March  4,  1851. 
March  4,  1853. 
March  4,  1857 
June  15,  1858. 
March  4,  1859. 
June  26,  1800. 
March  4,  1861. 
March  4,  1863. 
March  4,  1865. 
April  1,  1867. 
April  12,  1869. 
May  10,  1871. 
March  4,  1873. 
March  5,  1875. 


Ended.  Special  sea 

.June  26,  1795.  sions. 
.March  4,  1797. 

.July  19,  1798. 

.March  5,  1801. 

.March  7,  1809. 

.March  6,  1817. 

.March  9,  1825. 

March  17,  1829. 

.March  10,  1837. 

.March  15,  1841. 

March  20,  1845. 

.March  23,  1849. 

.March  13,  1851. 

April  11,  1853. 

.March  14,  1857. 

.June  16,  1858. 

March  10,  1859. 

June  28,  1860. 

March  28,  1861. 

March  14,  1863. 

March  11,  1865. 

.April  20,  1867. 

.April  22,  1869. 

.May  27,  1871. 

March  26,  1873. 

.March  24,  1875. 


1 Trial  of  the  President,  595.  The  above  statement  of  Mr. 

Forney  has  been  corrected  by  Mr.  G-.  C.  Dawson,  Librarian 
of  the  Senate. 

Section  5.  ^ach  House  shall  be  the  Judge  of  Wh<>  J’udg’ 

° es  of  the 

the  Elections,  Returns,  and  Qualifications  of  its  own  elections, 

7 7 ^ qualifica- 

Members;  and  a Majority  of  each  shall  constitute  a tions,and 
Quorum  to  do  Business;  but  a smaller  Number  may  its  own 

. members? 

adjourn  from  day  to  day,  and  may  be  authorized  Pages 44-46. 
to  compel  the  Attendance  of  absent  Members,  in 
such  Manner,  and  under  such  Penalties,  as  each 
House  may  provide. 

334.  uEACH  HOUSE  SHALL  BE  THE  JUDGE  OF  THE  What  is  the 
ELECTIONS  RETURNS  AND  QUALIFICATIONS  OF  ITS  OWN  ^testing 
members.  ” The  mode  of  contesting  elections,  so  as  to  invoke  elections  ? 
the  judgment  of  the  House  of  Representatives,  is  re-enacted  in 
the  Revised  Statutes,  chap.  8,  secs.  105-130,  as  amended  by 
the  act  of  2 March.  1875.  (19  Stat.,  2.)  The  contest  is  opened 


338 


congress,  334,  335. 


[Art.  I,  Sec.  5, 


Contest. 


What  was 
Caldwell’s 
ease? 


What  was 
Caldwell’s 
defense  ? 


within  thirty  days  after  the  decision,  by  notice  particularly 
specifying  the  grounds  of  the  contest.  The  answer  must  be 
returned  within  thirty  days,  and  it  must  admit  or  deny  the 
grounds,  and  may  set  up  new  matter.  The  contestant  is  given 
forty  days  to  take  evidence,  giving  notice  ; the  contestee  forty 
days,  and  the  contestant  ten  to  rebut.  All  must  be  closed  in 
ninety  days.  The  statute  prescribes  the  officers  to  examine 
and  the  other  regulations.  As  for  the  manner  of  service  and 
proof  thereof,  of  the  notice  and  answer.  See  Follett  v.  Delano, 
2 Bartlett,  115.  And  for  a review  of  the  practice  see  Ameri- 
can Law  of  Elections,  § 394. 

335.  Contests  in  the  Senate.  In  the  case  of  Alex- 
ander Caldwell,  of  Kansas,  certain  charges  of  bribery,  &c., 
were  preferred  against  the  Senator  eighteen  months  after  he 
had  taken  his  seat.  The  Committee  on  Privileges  and  Elec- 
tions reported  a volume  of  evidence.  Caldwell  admitted  that 
he  had  paid  Thomas  Carney  $15,000  to  retire  from  the  contest, 
and  it  was  found  that  much  money  was  employed  to  secure  his 
election,  but  that  Caldwell  paid  any  member  of  the  Kansas 
Legislature  to  vote  for  him  was  not  proved.  However,  the 
facts  were  not  so  material  in  the  view  taken  of  the  law  by 
the  Senators  in  the  long  record  of  debates  at  the  called  ses- 
sion of  the  Senate.  (43d  Cong.,  1873.)  Mr.  Morton,  chair- 
man of  the  Committee  on  Elections,  reported  u that  Alexander 
Caldwell  was  not  duly  and  legally  elected  to  a seat  in  the 
Senate  of  the  United  States  by  the  Legislature  of  the  State  of 
Kansas.” 

The  legal  positions  taken  by  Mr.  Caldwell  are  stated  in 
his  written  defense,  as  follows  : 

1.  That  his  admitted  transaction  with  Mr.  Carney  was  a 
private  affair  between  citizens,  and  was  not  denounced  as 
illegal  by  any  statute,  State  or  Federal,  and,  therefore,  about 
this,  the  Senate  had  no  legal  right  to  inquire. 

2.  That  bribing  the  members  of  the  Legislature  to  vote 
for  a candidate  is  not  made  a criminal  offense  by  any  statute 
of  the  United  States,  and  that  a member  of  the  Senate  can- 
not be  unseated  for  bribery,  because  he  cannot  be  indicted 
and  punished  for  it  in  court. 

3.  That  the  question  of  bribery  in  the  election  of  a Senator 
can,  under  no  circumstances,  be  inquired  into  b)r  the  Senate 
of  the  United  States,  but  that  the  right  to  make  investigation 
belongs  only  to  the  State ; and  that  the  Senate  is  concluded 
by  his  commission  from  the  State  from  all  inquiries  except 
as  to  whether  he  possesses  the  qualifications  required  by  the 
Constitution  of  the  United  States. 

4.  That  the  Senate  has  no  power  to  expel  a member  for 
any  cause  arising  before  he  became  a member  of  the  body. 

In  short,  the  plea  of  Mr.  Caldwell  is  a denial  of  the  ju- 
risdiction of  the  Senate:  1,  specially  over  the  question  of 
ante-election  bribery ; and,  2,  generally  over  any  matter  of 


Caldwell’s  case,  335. 


339 


Cl.  1.] 


ante-election  misconduct.  He  virtually  assumes  that  the  act 
of  which  he  is  accused  is  not  wrong  because  not  made  pun- 
ishable by  statute,  and  that  the  Seriate  cannot  legalty  declare 
an  election  void  for  a particular  act  until  Congress  or  a State 
Legislature  has  passed  a law  providing  to  punish  such  act  as  a 
criminal  offense. 

The  Senators  who  denied  the  jurisdiction  of  the  Senate, 
put  their  arguments  upon  various  grounds.  The  extreme 
States  rights’  advocates  assumed,  that  in  the  election  of  a 
Senator,  the  States  act  in  their  sovereign  character ; that  the 
States  determine  for  themselves  who  shall  choose  the  legis- 
lators, and  the  legislators  determine,  in  the  sovereign  legisla- 
tive capacity  of  the  States,  w’ho  shall  be  Senator ; and  that 
when  he  has  been  so  chosen  and  commissioned,  the  power  of 
the  Senate  is  confined  to  the  question  of  the  qualifications  of 
age  and  citizenship ; that  the  only  inquiries  as  to  the  election 
are,  was  there  a Legislature  and  did  the  Legislature,  choose, 
and  was  the  person  commissioned  duly  chosen?  Republi- 
cans who  sided  with  them  seemed  to  place  themselves  upon 
the  ground  that  the  motives  of  the  State  legislators  could 
not  be  the  subject  of  inquiry,  and  therefore  if  there  was  bri- 
bery, it  could  only  be  reached  by  the  criminal  punishment 
of  the  bribed  and  the  bribers,  or,  as  some  said,  by  seating  the 
commissioned  Senator,  and  then  expelling  him  for  the  crime 
or  impropriety  in  obtaining  his  election.  There  seemed  to 
be  a pretty  general  agreement  that  although  the  power  of 
judging  was  given  to  each  House  in  the  same  words,  yet  in 
practice  there  must  be  a difference.  For  example,  it  was 
admitted  that  the  first  thing  for  the  House  to  determine  is, 
to  whom  of  its  people  have  the  States  confided  the  power  of 
choosing  representatives?  Have  the  people  so  authorized, 
chosen  at  the  time  and  in  the  manner  prescribed  by  the  State 
laws?  Was  there  such  fraud,  bribery,  corruption,  intimida- 
tion, &c.,  as  to  vitiate  the  election?  And,  finally,  does  the 
person  holding  the  certificate  of  election  possess  the  constitu- 
tional qualifications  ? 

But  it  was  denied  (and  too  generally  conceded)  that  the 
Senate  could  judge  as  to  whether  the  legislators  of  the  State 
possessed  the  qualifications  required  by  the  State  constitu- 
tions. It  was  assumed  that  the  constitutions  of  the  States 
give  to  each  of  their  own  houses  the  right  to  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  members; 
and  this  power,  it  was  said,  was  exclusive;  and  therefore 
the  Senate  could  not  determine  the  legal  qualifications  of 
these  electors.  Whatever  was  illogical  in  this  argument  was 
obitur , as  no  question  as  to  the  qualifications  of  any  Kansas 
legislator  was  presented.  The  real  issue  was,  whether  buying 
off  an  opposite  candidate  and  purchasing  votes  (if  a major- 
ity of  the  Senate  was  convinced  that  such  was  the  fact)  vitiated 
the  election  so  far  as  to  authorize  the  Senate  to  assume  that 
the  Legislature  of  Kansas  had  not  elected  a Senator  within 


Grounds  of 
defence. 


How  were 
the  Sena- 
tors di- 
vided? 


What  was 
assumed  as 
to  the  right 
to  judge  of 
qualifica- 
tions of 
State  legis- 
lators ? 


340  THE  GOVERNMENT,  335,  336.  [Art.  I,  Sec.  5, 

The  true  the  sense  of  the  Constitution.  Those  who  took  the  affirma- 
tive assumed  that  there  was  no  doubt  about  the  facts ; that 
buying  off  the  opposition  of  Carney  was  itself  the  entering 
wedge  of  bribery ; that  there  was  evidence  of  votes  being  pur- 
chased, and  enough  evidence  that,  without  these  purchases, 
Caldwell  could  never  have  been  returned ; and  therefore 
there  was  no  election  within  the  sense  of  the  Constitution. 
Mr.  Edmunds,  and  perhaps  others,  insisted  that  these  acts  of 
moral  obliquity  went  to  the  qualifications  or  fitness  of  Caldwell, 
and  therefore  there  was  no  election.  Some  said  they  would 
vote  for  expulsion,  but  would  not  vote  for  the  resolution. 
Some  leading  democrats  answered  their  fellows  by  saying 
that  there  was  no  question  of  States’  rights  in  the  matter ; 
that  the  States  had  given  to  the  Senate  the  right  to  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  members; 
and  the  exercise  of  judgment  necessarily  involved  judicial 
discretion  and  interpretation  of  the  Constitution. 

This  obliteration  of  part}'  lines  in  the  debate  gave  the 
action  unusual  judicial  interest.  It  is  to  be  observed  that 
the  resolution  of  Mr.  Morton  might  be  passed  by  a majority 
of  a quorum,  whereas  expulsion  could  only  be  accomplished 
by  a two-thirds  vote.  Before  a vote,  Mr.  Caldwell  resigned, 
and  this  ended  the  contest. 

What  is  the  336.  Theory  of  the  Government.  It  is  a fit  place 

theory  of  to  remark  upon  the  theory  of  our  Government,  which  was 

ernment?  0llly  occasionally  glanced  at  in  the  debate. 

16, 17, 28-30.  All  magistrates  in  America  are  directly  or  indirectly  chosen 
by  the  people.  The  legislative  magistrates  in  the  States  are 
all  directly  chosen  by  the  same  electors,  although  the  Fed- 
eral Constitution  seems  to  contemplate  that  there  might  be 
a difference  ; and  hence  it  provides  that  the  Representatives 
in  Congress  shall  be  chosen  by  the  same  electors  who  choose 
the  popular  branches  of  the  State  Legislatures.  But,  as  in 
practice,  there  has  never  been  any  difference,  it  results  that 
the  same  State  voters  who  choose  the  senators  and  repre- 
sentatives of  the  States,  directly,  choose  the  Representatives 
in  Congress,  and  they  indirectly  choose  the  United  States 
Senators  and  the  President  and  Vice  President.  When, 
therefore,  a member  of  the  House  presents  himself,  with  the 
usual  evidences  of  election,  as  a rule,  he  is  seated ; and,  if 
there  be  a contest,  the  House  afterwards  determines  his  right 
to  sit  there.  There  are  numerous  precedents  which  go  to 
the  whole  questions  of  elections,  returns,  and  qualifications, 
such  as,  was  there  really  a vacancy  when  the  election  was 
held?  Was  it  held  at  the  time  and  places  and  in  the  manner 
prescribed  by  law?  Was  it  free?  Did  the  voters  possess  the 
qualifications  prescribed  by  the  State  constitutions  and  laws? 
Was  there  fraud,  bribery,  ballot-stuffing,  false  counting,  cor- 
ruption, or  other  malpractices  which  vitiate  the  election? 
And  as  extraordinary  precedents,  were  the  States  and  the 


341 


Cl.  1.]  THE  GOVERNMENT,  336. 

people  in  a condition  to  elect,  or  were  they  in  hostility  to 
the  United  States? 

The  precedents  are  not  harmonious.  And  there  are  cases 
in  which  the  House  has  gone  behind  the  elections  and  returns 
to  the  moral  fitness  of  the  member  returned,  as  in  Whitte- 
more’s  case. 

The  precedents  in  the  Senate  have  not  been  so  frequent, 
because  there  have  been  few  contests.  No  case  has  gone 
hack  to  the  legal  qualifications  of  the  electors  who  returned 
the  Legislatures  who  elected  the  Senators,  though  it  is  hard 
to  see  how  a due  respect  to  the  people  could  deny  that  right. 
Cases  have  occurred  where  it  was  held  that  there  was  no 
vacancy  when  the  Senator  was  chosen.  Shields  was  denied 
his  seat  because  he  had  not  been  nine  years  a citizen.  Others 
have  been  refused  because  they  could  not  take  the  test  oath, 
which  was  a superadded  qualification.  Mental  fitness  and 
moral  fitness  have  been  questioned,  and  the  cases  referred  to 
committees;  and  now,  in  the  Louisiana  and  Alabama  cases 
are  raised  the  questions  whether  the  Legislatures  which  re- 
turned the  members  were  in  fact  the  bodies  elected  by  the 
people  ? 

To  the  author  all  precedents  of  mere  practice  are  very  in- 
ferior to  the  great  question  of  the  true  theory  of  the  Govern- 
ment. That  theory  is,  that  the  Government  is  one  of  the 
people,  as  contradistinguished  from  the  magistrates  of  their 
immediate  choice.  Among  the  powers  confided  to  the  State 
Legislatures  is  the  right  to  choose,  in  joint  convention  of  the 
houses,  United  States  Senators  for  six  years.  There  is  a sort 
of  extreme  theory  that  these  Senators  are  ambassadors  to 
represent  the  sovereignty  of  the  States,  whatever  that  may 
be;  that  they  have  no  direct  responsibilities  to  the  people, 
and  are  in  no  manner  bound  by  the  instructions  of  the  Legis- 
latures. But  they  are  not  ambassadors,  but  representatives 
of  the  people,  by  whom  they  are  indi  rectly  chosen,  and  as  to 
the  appointing  and  treaty-making  power,  they  are  privy 
counsellors  of  the  President.  Physically  they  are  not  sub- 
ject to  the  will  of  the  people,  nor  are  members  of  the  House, 
nor  of  the  State  Legislatures,  nor  the  President,  nor  judges, 
nor  any  other  magistrate,  however  chosen.  But  if  the  re- 
public is  to  be  preserved  and  revolutions  avoided,  all  magis- 
trates must  return  to  first  principles,  and  responsibility  to 
the  people  must  be  acknowledged. 

There  is  no  physical  power  to  control  the  presidential 
electors.  Indeed,  the  original  theory  of  the  Constitution 
contemplated  perfect  freedom  of  choice  by  the  electors,  who 
may  be  chosen  by  the  State  Legislatures,  by  the  people,  by  a 
quorum,  or  a less  number  of  those  chosen  by  the  people,  by 
the  clergy,  the  laity,  or  any  infinitessimal  part  of  either  to 
whom  the  States  confide  the  power.  That  is  the  theory  of 
the  Constitution,  and  its  further  theory  is,  that  th^se  elect- 
oral colleges,  chosen  in  such  a manner  as  the  States  shall 


The  choice. 


Precedents 
in  the  Sen- 
ate. 


35. 


What  are 
the  respon- 
sibilities to 
the  people  ? 

30 


842 


the  house,  336,  337,  338. 


[Art.  I,  Sec.  5, 


The  prece- 
dent. 


What  con- 
trol is  there 
over  the 
electors? 


What  of 
contests  in 
the  House? 


What  may 
the  House 
determine  ? 


prescribe,  will  not  elect;  and  the  ultimate  choice  will  be 
referred  to  the  States,  who  would  vote  as  equals  in  the 
House,  through  their  direct  representatives  of  the  people. 
But  again : the  people  have  no  physical  and  often  little 
moral  control  over  these  representatives.  And,  in  precedents, 
all  these  theories  of  the  Constitution  have  proved  unsafe. 
In  the  effort  to  resume  the  powers  which  have  been  dele- 
gated through  indirect  machinery,  the  National  Conventions 
assume  the  responsibility  of  nominating  candidates,  whom 
the  people  believe  they  ratify  at  the  polls. 

An  attempted  appeal  from  one  popular  choice  involved  the 
country  in  a terrible  civil  war,  all  the  consequences  of  which 
no  man  is  yet  able  to  prophesy. 

The  Constitution  has  delegated  to  no  magistracy  the  right 
to  determine  the  elections,  qualifications,  and  returns  of  the 
presidential  choice.  Yet  it  will  be  seen  in  another  note 
that  it  is  being  exercised  and  has  been  exercised  by  the  two 
Houses  of  Congress ; and  such  an  exercise,  upon  technical 
grounds,  might  defeat  the  popular  will.  The  deliberation 
seems  to  be  to  find  a constitutional  mode  of  revising  the 
choice  of  magistrates,  when  such  a choice  was  not  fairly 
made,  or  for  any  reason  was  not  fit  to  be  made.  Every  re- 
move from  the  people  seems  only  to  complicate  matters. 
Hence  our  tenure-of-office  laws,  civil-service  regulations,  and 
every  restriction  upon  appointment  and  removal.  And  as  a 
consequence  of  no  appeal  we  have  the  disgraceful  scenes  of 
purchasing  senatorial  seats  and  other  high  offices  with  money 
and  other  influences.  The  vast  increase  of  wealth  and  con- 
centrated monopolies  enable  the  designing  to  go  down  to  the 
very  fountains  of  power,  and  to  influence,  if  not  to  control, 
popular  choice.  But  these  influences  are  naturally  still  more 
potent  where  it  is  left  to  one  magistrate  or  one  set  of  magis- 
trates to  choose  others.  Were  Senators  chosen  directly  by 
the  people,  the  employment  of  corrupting  influences  would 
be  greatly  diminished,  and  were  the  great  body  of  federal 
magistrates  chosen  by  the  people,  there  would  be  less  motive 
for  corruption. 

337.  Contests  in  the  House.  Frauds  in  naturaliza- 
tion. Where  great  frauds  in  the  manufacture  of  naturaliza- 
tion papers  were  proved,  and  also  fraud  in  the  elections, 
Congress  heard  proof  to  purge  the  polls,  and  excluding  the 
illegal  voting,  as  far  as  possible,  on  both  sides,  changed  the 
result  and  gave  the  seat  to  the  sitting  member.  Van  Wyck 
v . Greene,  40th  Cong.,  2d  sess.,  Report  No.  22,  Feb.  3,  1870. 

338.  Some  General  Rules.  The  House  can  only  de- 
termine whether  the  election  has  been  held  in  accordance 
with  law,  whether  the  party  chosen  has  the  constitutional 
qualifications,  and  whether  the  returns  have  been  legally 
made.  Perkins’s  Case,  Contested  Elections,  144. 


ELECTIONS,  338,  339. 


343 


Cl.  1.] 


The  House  may  go  behind  the  certificates  and  count  all  ah  legal 
legal  votes.  Christman  v.  Anderson,  3 Contested  Elections,  votes- 
(14  June,  I860,)  328;  42  Congressional  Globe,  3075-7,  3079, 

3127,  3131. 

Gross  frauds  will  not  be  overlooked,  (Boileau’s  Case,  Par-  Fraud* 
sons’  Select  Cases,  503,)  nor  a reckless  disregard  nor  criminal 
carelessness  in  regard  to  the  election  laws.  Id.,  3 Contested 
Elections,  158,  159  ; Sleeper  v.  Rice,  Id.,  472, 

The  party  contesting  on  the  ground  of  illegal  votes  ought 
to  state  the  names  of  the  illegal  voters.  Varnum’s  Case,  1 
Contested  Elections,  112  ; Easton  v.  Scott,  1 Contested  Elec- 
tions, 272;  Wright  v.  Fuller,  3 Contested  Elections,  161. 

But  the  objection  to  the  notice  should  be  made  before  the 
party  appears  and  examines.  Otero  v.  Gallegos,  3 Con- 
tested Elections,  178.  It  is  not  necessary  to  specify  all  the 
names.  Yallandigham  Campbell,  3 Contested  Elections, 

223. 

339.  What  the  Notice  should  Specify.  The  first  what 
class  of  defective  notices  give  no  notice  of  any  particular  facts  Notice  th° 
to  be  proved  or  disproved.  Skerrett’s  Case,  2 Pars.,  509;  specify? 
same  case,  Brightly’s  Contested  Elections,  320,  324.  The 
statute  is,  “and  in  such  notice  he  shall  specify  particularly 
the  grounds  of  his  contest.  ” (9  Stat.  at  L.,  563,  § 1 ; 1 Bright- 
ly’s Dig.,  254.)  To  specify  particularly  is  to  set  forth  cause, 
manner,  and  instrument;  when,  where,  and  how  much;  the 
illegalities,  frauds,  or  irregularities  which  will,  in  fact,  be 
notice  of  the  facts  to  be  proved,  as  having  happened  in  rela- 
tion to  certain  counties  and  precincts.  The  provision  is 
merely  an  affirmance  of  what  the.  law  aforetime  was.  Leib’s 
Case,  Clark  and  Hall,  165;  Luthrel  v.  Hume,  4 Doug.  Elec- 
tion Cases,  25 ; Skerrett’s  Case,  2 Parsons,  507 ; Carpenter’s 
Case,  same,  537 ; Kneass’s  Case,  2 Parsons,  553,  and  section 
fi  of  the  statute  of  the  same  restricts  the  parties  to  the  proof 
or  disproof  of  the  facts  alleged  and  denied.  1 Brightly, 

255,  § 21. 

The  rule  as  to  elections  everywhere  is  that  the  things  in- 
tended to  be  proved  should  be  stated  with  such  certainty  as 
to  give  the  contestant’s  opponent  reasonable  notice,  and  to 
enable  the  House  to  judge  whether  the  facts,  if  true,  be  suf- 
ficient to  vacate  the  seat  or  to  establish  the  right  to  retain  it. 

Leib’s  Case,  1 Contested  Elections,  165 ; Eastwood  v.  Scott, 

2 Contested  Elections,  272 ; Kline  v.  Verree,  1 Bartlett’s  Con- 
tested Elections,  381 ; Delano  v . Morgan,  Digest  of  Elections, 

177 ; S.  C.,  1 Bartlett,  168.  In  this  latter  case,  Mr.  Dawes 
defines  the  too  general  notice  of  the  contestant  with  preci- 
sion: “You  were  not  elected  ; I was.”  “You  did;  I didn’t.” 

“I  will  prove  intimidation,”  &c.,  (p.  177.)  The  rule  of  Mr. 

Dawes  goes  further,  and  upon  exhaustive  authorities  it  is 
shown  that  the  contest  must  be  in  accordance  with  the  law, 
and  upon  grounds  known  to  the  law.  Ib.,  178. 

27 


344  . 


IRREGULARITIES,  340,  341.  [Art.  I,  Sec.  5, 


What  of 
mere  ir- 
regulari- 
ties ? 


What  gen- 
eral prin- 
ciple is 
usually 
adopted? 


340.  Mere  Irregularities— Oath  of  Officers.  If 
the  returning  officers  neglect  to  be  sworn,  the  votes  will  not 
count.  McFarland  v.  Purviance,  and  same  v.  Culpepper, 
Contested  Elections,  131,  221 ; S.  C.  C.,  L.  &H.,  221 ; Easton 
v.  Scott,  Id.,  272  ; Drapers.  Johnston,  Id.,  702  ; Otero  v.  Gal- 
legos, 3 Contested  Elections,  182,  183 ; S.  C.,  Bartlett,  177. 

But  in  addition  to  the  mere  failure  of  the  officers  to  take 
the  required  oath,  there  must  be  such  evidence  of  fraud  and 
misconduct  on  the  part  of  the  judges  as  to  taint  the  whole 
proceeding  and  to  render  it  uncertain  what  the  result  was, 
Mann  v.  Cassidy,  Brewster,  Penn.,  11;  Draper  v.  Johnson, 
2 Cong.  Contested  Election  Cases,  701 ; Blair  v.  Barrett,  3 
Contested  Election  Cases,  1 Bartlett,  (1840,)  313-315 ; Knox 
v.  Blair,  (5  May,  1864,)  Id.,  521.  The  case  of  Blair  v.  Barrett 
was  an  interesting  case,  and  will  be  found  in  the  Globe,  vol. 
41,  pp.  2645,  2649,  2761,  2766,  2767,  and  Appendix,  445,  and 
vol.  42,  p.  395.) 

341.  General  Rule.  The  general  rules  as  to  mere  ir- 
regularities have  been  decided  in  many  exhaustive  judicial 
cases,  and  certainly  such  precedents  ought  to  have  great  in- 
fluence. 

The  general  principles  of  law  may  be  thus  stated : Mere 
irregularities  will  not' exclude  election  returns,  when  there 
is  no  suspicion  of  unfairness,  and  when  there  is  no  reason  to 
believe  that  such  irregularities  have  in  anywise  affected  the 
result  of  the  election.  Ex  parte  Heath,  3 Hill,  44;  Ex  parte 
Murphy,  7 Cow.,  153;  The  People  v.  Vail.  20  Wend.,  12;  The 
People  v . Stevens,  5 Hill,  627 ; Truehart  v.  Addicks,  2 Tex., 
222.  And  the  same  principles  exhausted  in  The  People  v. 
Cook,  14  Bailey,  285;  S.  C.,4Seld.,  70,  (8A.  Y.,  67,)  which 
case  is  cited  ancl  approved  in  McKinney  v.  O’Conor,  26  Tex., 
12. 

Thus,  the  failure  in  the  returning  officer  to  add  up  the  re- 
turns of  the  different  precincts  is  immaterial.  Id  cerium  est 
quod  cerium  redi  potest . When  the  complaint  is  a failure  to 
return  votes,  it  must  clearly  appear  that  such  votes  would 
change  the  result.  {Ex parte  Heath,  3 Hill,  44.)  To  warrant 
setting  aside  the  election,  it  must  appear  affirmatively  that 
the  successful  ticket  received  a number  of  improper  votes 
which,  if  rejected,  would  have  brought  it  down  to  a minority. 
{Ex  parte  Murphy,  7 Cow.,  154;  The  People  v.  Yail,  20 
Wend.,  15;  Truehart  v.  Addicks,  2 Tex.,  222,  223.) 

So,  where  a statute  requires  an  act  to  be  done  by  an  officer 
within  a certain  time,  for  a public  purpose,  the  statute  shall 
be  taken  to  be  merely  directory ; and  though  the  officer  ne- 
glect his  duty  by  allowing  the  precise  time  to  goby,  if  lie 
afterward  perform  it,  the  public  shall  not  suffer  by  the  delay. 
Ex  parte  Heath,  3 Hill,  47;  The  People  v.  Works,  7 Wend., 
486,  487;  Colt  v.  Eves,  12  Conn.,  243,  253,  255;  Truehart  r. 
Addicks,  2 Tex..  224 


Cl.  1.] 


GENERAL  RULE,  341. 


345 


The  principle  was  fully  discussed  in  Carpenter  v.  Ely,  4 The  right 
Wisconsin,  420 ; same  case,  Brightly’s  Contested  Elections,  to  office. 
258#  Judge  Cole  reviews  statutes  and  cases  of  Attorney 
General  v.  Barstow,  4 Wisconsin,  567 ; People  v.  Van  Slyck, 

4 Cowen,  322 ; Ex  part t Heath,  3 Hill,  42  ; People  v.  Stevens, 

5 Hill,  616;  and  he  concludes:  “For  it  is  the  election  by  a 
plurality  of  votes  which  constitutes  the  right  to  an  office,  and 
that  right  cannot  be  defeated  by  the  mistake,  negligence,  or 
misconduct  of  the  canvassing  boards.  Attorney  General  v. 

Barstow,  4 Wisconsin,  567;  People  v.  Vail,  20  Wend.,  12; 

Ex  parte  Heath,  3 Hill,  42  ; Brightly’s  Contested  Elections, 

261,  262.  And  see  the  learned  note  of  Brightly,  pp.  265- 
268.  The  same  principle  is  very  clearly  reasoned  in  Boileau’s 
Case,  in  Pennsylvania,  2 Parsons,  503 ; same  case,  Bright- 
ly’s Contested  Elections,  268 ; and  in  Sterrett’s  Case,  Bright- 
ly’s Contested  Elections,  324,  325. 

The  whole  subject  is  completely  exhausted  in  The  People  v. 

Cook,  8 New  York,  67 ; Brightly’s  Contested  Elections,  423. 

It  holds  that  where  the  pleadings  raise  a question  of  fraud 
in  relation  to  the  acts  of  a board  of  election  officers,  and  the 
election  goes  only  to  show  an  irregularity  without  fraudulent 
intent,  the  court  is  not  bound  to  submit  it  to  the  jury  as  an 
open  question;  that  fraud,  when  imputed  to  the  acts  of  in- 
spectors of  election,  implies  an  illegal  and  wrongful  act  pur- 
posely committed;  that  an  irregularity  in  conducting  an 
election  which  does  not  deprive  a legal  voter  of  his  vote,  nor 
admit  a disqualified  person  to  vote,  if  it  cast  no  uncertainty 
on  the  result,  and  have  not  been  occasioned  by  the  agency  of 
a party  seeking  to  derive  a benefit  from  it,  maybe  overlooked 
in  a quo  warranto  ; that  the  county  board  has  no  right  to  re- 
ject a return  which  is  regular  on  its  face,  and  delivered  to 
the  proper  officer  within  the  time  prescribed  by  law ; that 
the  hour  of  closing  the  polls  is  directory,  not  imperative. 

Thus,  on  pages  437,  438,  (Brightly,)  it  was  said  that  the  fail- 
ure of  the  inspectors  or  clerks  to  take  any  oath,  or  their 
taking  an  irregular  oath,  was  no  objection.  (Cow.  and  Hill’s 
Notes,  705 ; the  same,  1503 ; Cady  v.  Norton,  14  Pick.,  236 ; 
Commonwealth  v . Buzzell,  16  Pick.,  153.)  If  the  officers 
were  de  facto,  it  is  sufficient ; and  if  there  were  irregularities, 
the  question  is,  what  was  the  true  state  of  the  vote  ? And 
that  the  failure  of  the  inspectors,  who  were  not  appointed 
but  acted,  to  take  the  required  oath,  did  not  vitiate  their 
rights  as  to  third  persons,  is  supported  bjr  the  case  of  McFar- 
land v.  Purviance,  1 Cong.  Election  Cases,  131 ; McFarland 
v.  Culpepper,  Ibicl.,  221 ; and  Draper  v.  Johnston,  Ibicl.,  702. 

And  that  the  county  judges  have  no  right  to  reject  a certifi- 
cate of  the  canvassing  board  which  is  fair  on  its  face ; that 
the  hour  of  closing  and  opening  the  polls  is  not  of  the  es- 
sence of  law,  but  only  directory.  Brightly,  444,  445.  And, 
finally,  the  opinion  concludes  that  it  may  be  safely  affirmed 
that  44  if  the  irregularity  do  not  deprive  a voter  of  his  right, 


346 


exclusion,  341,  342. 


[Art.  I,  Sec.  5, 


The  People  nor  admit  a disqualified  person  to  vote  ; if  it  cast  no  uncer- 
y.  Cook.  tainty  on  the  result,  and  have  not  been  occasioned  by  the 
agency  of  the  party  seeking  to  derive  a benefit  from  it 
may  be  overlooked,  where  the  issue  is  as  to  which  candidate 
received  the  greater  number  of  votes  for  a particular  office  at 
a given  election.”  (Philips  v.  Wickham,  1 Paige,  590;  People 
v.  Cook,  Brightly,  447.)  And  this  doctrine  is  sustained  by  The 
People  v . Schemerhorn,  19  Barb.,  540;  The  Commonwealth 
v.  Meeser,  44  Pa.  State  B.,  343  ; Juker  v.  Commonwealth,  20 
Pa.  State  B.,  493;  Thompson  v.  Ewing,  1 Brewster,  107. 
And,  in  Illinois,  it  is  held  that  the  statutory  rules  are  direc- 
tory merely,  not  jurisdictional  or  imperative.  Piatt  v.  The 
People,  29  111.,  72.  And  so  in  New  Jersey.  Hardenburgh  v. 
Farmers  and  Mechanics’  Bank,  2 Green’s  Ch.,  68.  So,  in- 
deed, in  all  the  States,  according  to  the  learned  note  of  Mr. 
Brightly,  in  his  book  on  Contested  Elections,  pages  448  to 
454,  which  concludes  thus  : “It  is,  of  course,  no  objection  to 
an  election  that  illegal  votes  were  received,  or  legal  votes  re- 
jected, if  they  did  not  change  the  majority.”  Sudbury  v . 
Strauss,  21  Pick.,  148;  Blandford  v.  Gibbs,  2 Cush.,  39; 
Christ  Church  v . Pope,  8 Gray,  140 ; Ex  parte  Murphy,  7 
Cow.,  153;  State  v.  Lehre,  7 Bich.,  234;  McNeely  v.  Wood- 
ruff*, 1 Green,  352 ; People  v.  Cicott,  16  Mich.,  295 ; People  v. 
Tuthill,  31  New  York,  550 ; Matter  of  Chenango  Insurance 
Co.,  19  Wend.,  635. 

mieeastoe  342.  Exclusive  Bight  to  Judge.  The  practice 
the  right  to  is  liberal  in  regard  to  the  personal  rights  of  candidates  and 
judge?  the  constitutional  rights  of  constituencies.  Wright  v.  Ful- 
ler, 2 Contested  Elections,  154;  Daily  v.  Eastbrook,  lb.,  304. 
For  “each House  is  to  judge  of  the  elections , returns,  and  qual- 
ifications of  its  own  members,”  and  no  previous  House  and 
Senate  (much  less  the  canvassing  officers  of  the  State  or 
States  themselves)  can  judge  for  them.  The  rights  of  the 
electors  should  not  be  compromitted  for  the  laches,  if  any 
exist,  for  which  they  are  not  responsible.  It  is  more  import- 
ant that  their  voice  should  have  expression  in  the  House, 
through  their  lawfully-elected  Bepresentative,  than  that  this 
or  that  man  should  enjoy  the  emoluments  of  office.  Wil- 
liamson v . Sickles,  2 Contested  Elections,  209.  It  is  a great 
public  injury  where  the  voters  of  the  district  are  the  real 
parties.  Vallandigham  v.  Campbell,  2 Contested  Elections, 
230.  The  question  is  not  what  the  parties  or  the  officers 
have  done  or  omitted  to  do,  but  what  was  the  expressed 
wish  of  the  people  at  the  polls.  Chapman  v.  Ferguson,  2 
Contested  Elections,  230 ; Wallace  v.  Simpson,  Digest  of  Elec- 
tion Cases,  556.  There  is  here  no  element  of  the  fraud 
which  brings  the  case  within  the  Pennsylvania  rule,  adopted 
in  Covode  v.  Foster.  Digest  of  Election  Cases,  602,  603. 
The  same  general  rules  have  been  repeatedly  adopted  by 
the  Committee  on  Elections  of  the  House.  Perkins’s  Case, 


Cl.  1.] 


EXCLUSION,  342. 


347 


Contested  Elections,  144.  Thus,  if  the  complaint  be  the  fail- 
ure of  the  election  officers  to  take  the  required  oath,  there 
must  be  such  evidence  of  fraud  and  misconduct  on  the  part 
of  the  judges  as  to  taint  the  whole  proceedings,  and  to  render 
it  uncertain  what  the  result  was.  Mann  v.  Cassidy,  Penn- 
sylvania case,  Twenty-second  Congress,  Contested  Election 
Cases,  701 ; Blair  v.  Barrett,  3 Contested  Election  Cases, 
(1840,)  313-315;  fcnox  v.  Blair,  (5  May,  1864,)  3 Contested 
Election  Cases,  521.  The  debate  in  Blair  v.  Barrett  was  in- 
teresting and  exhaustive,  and  the  debate  will  be  found  in  the 
' Globe,  vol.  41,  pp.  2645,  2646,  2649,  2677,  2761,  2766,  and 
Appendix,  445,  and  vol.  42,  p.  395. 

So  the  charge  that  a party  received  “a  majority  of  legal 
votes”  goes  for  nothing  unless  he  specify  ivho  were  the  ille- 
gal voters,  and  the  grounds  of  illegal  voting.  Vardeman’s 
Case,  Contested  Elections,  112 ; Easton  v.  Scott,  Contested 
Elections,  272;  Wright  v.  Fuller,  3 Contested  Elections,  161. 

Mere  neglect  to  perform  directory  requirements  will  not 
vitiate  the  election.  SkerretCs  Case,  2 Parsons,  509. 

Unless  there  be  harm  or  bad  faith.  Thompson  v.  Ewing, 

2 Parsons,  107.  Not  even  careless  ignorance  or  willful  neg- 
lect. Weaver  v.  Given,  Parsons,  144.  And  to  the  same 
effect,  and  that  fraud  will  not  be  presumed,  see  Goggin  v. 
Gilmer,  Contested  Elections,  70 ; Littell  v.  Robbins,  Ib.^  138 ; 
Whyte  v.  Harris,  lb.,  263. 

Nor  will  mere  irregularities  in  not  swearing  officers  as 
required  Ijy  statute  vitiate  the  election.  Blair  v.  Barrett, 
Contested  Election  Cases,  311;  Milliken  v.  Fuller,  lb.,  176; 
Covode  v.  Henry,  No.  15,  part  2,  41st  Cong.,  2d  sess.,  pp.  3, 4. 

The  same  general  precedents  were  adopted  in  Giddings  v. 
Clark  and  Niblack  v.  Wall,  in  1872.  All  objections  to  mere 
irregularities  were  overruled. 

Presumptions  are  in  favor  of  the  qualifications  of  voters 
and  the  correctness  of  the  acts  of  officers  until  the  contrary 
is  proved.  Goggin  v.  Gilmer,  3 Contested  Elections,  70; 
Botts  v . Jones,  Id.,  73. 

The  election  statutes  are  but  directory.  Brockenborough 
v . Cabell,  3 Contested  Elections,  79;  Easton  v.  Scott,  Con- 
tested Elections,  281 ; Blair  v.  Barrett,  3 Contested  Elections, 
313. 

Where  votes  are  given  by  ballot , an  elector  cannot  be  com- 
pelled to  disclose  the  name  of  the  candidate  for  whom  he 
voted.  Easton  v.  Scott,  Contested  Elections,  272 ; Otero  v. 
Gallegos,  3 Contested  Elections,  (10  May,  1856,)  p.  183.  And 
if  the  judge  open  the  ballots,  proclaim  the  vote,  and  have  it 
recorded,  thus  in  fact  conducting  the  election  by  ballot,  such 
a precinct  will  be  rejected.  Otero  v . Gallegos,  3 Contested 
Elections,  183. 

A party  must  substantiate  his  charge  of  fraud  before  he  can 
have  a recount  of  the  votes.  Kline  v.  Myers,  (22  June,  1864, 

3 Contested  Elections,  574. 


Oath  of  i he 
officers. 


Ballot. 


RETURNS,  343,  344. 


[Art.  I,  Sec.  5, 


348 


What  of 
the  re- 
turns ? 


Can  a gov- 
ernor recall 
his  certifi- 
cate? 


What  was 
the  New 
Jersey- 
case  ? 


62. 


343.  44  Returns.”  The  election  was  held  during  the  re- 
bellion, and  after  Tennessee  had  seceded,  on  the  day  appointed 
for  elections  in  that  State.  Maynard  and  Clements  received 
votes  in  their  respective  districts,  which  the  sheriffs  and  the 
governor  refused  to  certify  : Held , that  they  were  entitled  to 
their  seats.  Clements’  Case,  3 Contested  Elections,  366.  But 
see  the  case  of  Upton,  Id.,  368.  This  and  Beach’s  case  hold 
that  the  election  must  have  been  held  in  accordance  with  the 
laws  of  Virginia.  Id.,  391.  And  see  Legare’s  Case,  who  was 
admitted.  Id.,  415.  And  Foster’s  case.  Id.,  424. 

344.  Power  to  recall  Certificate.  The  gov- 

ernor of  Nebraska  Territory  gave  the  certificate  to  Mr.  Mor- 
ton, but,  upon  the  ground  of  discovered  fraud,  revoked  it  and 
gave  a second  certificate  to  Mr.  Daily.  The  House  decided 
that  Mr.  Daily  should  occupy  the  seat  pending  the  contest. 
Morton  v.  Daily,  3 Contested  Elections,  402.  And  the  gov- 
ernor’s view  being  sustained  upon  the  facts,  Mr.  Daily  re- 
tained his  seat.  Id.,  414.  * 

The  great  New  Jersey  case.  The  notable  features 
in  this  case  are  that  the  whig  candidates  produced  the  cer- 
tificates of  election  from  the  executive  of  New  Jersey.  But 
it  being  known  that  this  result  was  produced  by  the  canvassers 
having  excluded  two  townships  because  of  irregularities,  the 
clerk,  upon  calling  the  list  for  organization,  refused  to  call  the 
names  of  those  thus  commissioned.  This  caused  two  weeks’ 
debate  before  the  House  was  organized.  After  organization, 
without  these  five  seats  having  been  filled,  the  whole  question 
wTas  referred  to  the  Committee  on  Elections.  Pending  the 
investigation  the  committee,  by  resolution,  demanded  a report 
as  to  who  had  the  highest  number  of  legal  votes.  Upon  a 
partial  report,  the  democrats  were  admitted,  but  the  exam- 
ination proceeded  as  in  the  case  of  a contest.  Applying  the 
usual  rules  as  to  the  presumption  of  fairness  of  every  vote, 
and  the  mode  of  proof  where  parties  refused  to  testify  as  to 
how  they  voted;  that  is  by  proving  the  parties  to  which  they 
belonged,  the  two  excluded  townships  were  counted,  the 
polls  purged,  and  the  democrats  seated.  New  Jersey  Case, 
Contested  Elections,  19-33 ; S.  C.,  vol.  8,  Congressional 
Globe,  passim.  A general  charge  of  fraud,  founded  on  hear- 
say evidence,  should  not  be  considered.  Ingersoll  v.  Naylor, 
3 Contested  Elections,  (1840,)  p.  33. 

Under  this  clause  the  House  has  the  right  to  ascertain  and 
decide  upon  all  questions  of  law  and  fact,  necessary  to  determ- 
ine the  right  of  each  individual  who  may  claim  to  be  one  of 
its  members.  Baker’s  and  Norton’s  Cases,  (26  Feb.,  1847,) 
3 Contested  Elections,  93.  Baker  and  Yell  having  accepted 
offices  as  commanders  of  volunteers,  and  been  mustered  in 
the  army  of  the  United  States,  their  offices  as  members  of 
Congress  became  vacated.  3 Contested  Elections,  93.  So 


Cl.  1.] 


QUALIFICATIONS,  344-346. 


349 


that  a party  may  become  disqualified  while  he  is  a member  Abandon- 
accepting  another  office.  of 

The  same  principle  was  ruled  in  Byington  v.  Vandever,  (11 
April,  18G2,)  3 Contested  Elections,  395-402.  But  where  the 
party  became  disqualified  by  accepting  a military  office  after 
the  election,  and  before  he  was  qualified,  the  candidate  who 
received  the  next  highest  number  of  votes  is  not  entitled  to 
the  seat.  Byington  v.  Vandever,  3 Contested  Elections,  402. 

345.  u Qualifications  of  its  own  Members.”  Ben-  Can  the 
jamin  F.  Whittemore,  of  South  Carolina,  was  charged  with  -House  re- 
the  crime  of  selling  a cadetship  for  money.  He  admitted  other°dis- 
the  fact,  but  stated  in  extenuation  that  he  used  the  money  abilities 
in  his  district  for  charitable  purposes.  The  Military  Commit-  tJ?an  ,the 
tee  reported  a resolution  for  his  expulsion.  To  avoid  a vote  q^alifiTa-’ 
Whittemore  resigned.  The  House  passed  a resolution  of  tions,  and 
censure,  denouncing  Whittemore  as  unfit  for  membership.  returns? 
The  governor  ordered  an  election  to  fill  the  vacancy,  and 
Whittemore  was  re-elected.  His  credentials  having  been  pre- 
sented, the  House,  on  21  June,  1870,  resolved* not  to  admit 
him  to  membership.  (House  Journal,  18  and  21  June,  1870.) 

So  here  was  a precedent  which  looked  behind  the  mere  con- 
stitutional qualifications,  and  to  the  character  of  the  person 
chosen.  It  was  claimed  by  Mr.  Logan  that  the  resolution  of 
the  House  that  Whittemore  had  been  guilty  of  selling  an  ap- 
pointment for  money  might  be  regarded  as  a conviction  for 
an  offense  which  rendered  him  infamous,  and  disqualified 
him  from  holding  any  office.  But  this  was  hardly  the  point 
on  which  the  decision  was  made.  The  vote  stood — for  rejec- 
tion, 121 ; against,  24. 


346.  Disabilities  and  Test  Oath.  On  22  March,  what  are 
1869,  the  House  passed  the  following  resolution  : the  pre- 

cedents 

44  Resolved^  That  in  all  contested  election  cases  referred  to  about  the 
the  Committee  of  Elections,  in  which  it  shall  be  alleged  by  testoath? 
a party  to  the  case  or  a member  of  the  House  that  either  242. 
claimant  is  unable  to  take  the  oath  prescribed  in  the  act  ap- 
proved July  2,  1862,  entitled  ‘An  act  to  prescribe  an  oath  of 
office,  and  for  other  purposes,’  it  shall  be  the  duty  of  the 
committee  to  ascertain  whether  such  disability  exists;  and  if 
such  disability  shall  be  found  to  exist,  the  committee  shall  so 
report  to  the  House,  and  shall  not  further  consider  the  claim 
of  the  person  so  disqualified  without  the  further  order  of  the 
House;  and  no  compensation  will  be  allowed  by  the  House 
to  any  claimant  who  shall  have  been  ineligible  to  the  office  of 
Representative  in  Congress  at  the  time  of  the  election,  and 
whose  disability  shall  not  have  been  removed  by  act  of  Con- 


In  Sypher  v.  St.  Martin,  the  Committee  of  Elections  re-  Sypher’s 
ported  that  Louis  St.  Martin  could  not  take  the  oath.  H.  case? 


350 


Just 

missed. 


What  of 
voting  for 
disquali- 
fied candi- 
date? 


TEST  CASE,  346.  * [Art.  I,  Sec.  5, 

R.  Rep.,  No.  11,  41st  Cong.,  1st  sess.,  6 April,  1869.  Upon 
this  report  it  was  ordered  to  allow  Mr.  Sypher,  the  contest- 
ant, the  seat.  But  the  moment  when  the  Speaker  was  about 
to  administer  the  oath,  a motion  to  reconsider  prevailed,  and 
the  seat  was  declared  vacant,  thus  establishing  a precedent 
that  where  the  member  returned  is  disqualified  because  of 
inability  to  take  the  oath,  the  contestant  shall  not  be  seated, 
because  he  is  wanting  in  votes. 

There  is  a question  whether  the  test  oath  is  not  imposing  a 
disqualification  not  contemplated  by  the  Constitution,  which 
it  was  so  ably  shown  the  States  could  not  do,  in  Turney  v. 
Marshall  and  Fouke  v.  Trumbull,  Contested  Elections.  167. 

In  the  case  of  the  King  v.  Hawkins,  10  East.,  211,  Lord 
Ellenborough,  in  pronouncing  the  judgment  of  the  King’s 
Bench,  said : 

“The  general  proposition  that  the  votes  given  for  a candi- 
date after  notice  of  his  ineligibility  are  to  be  considered  the 
same  as  if  the  persons  had  not  voted  at  all,  is  supported  in 
the  case  of  King  v.  Withers,  and  Taylor  v.  Biggs.” 

In  the  latter  case  all  the  judges  held — 

“That  when  electors  vote  for  a person  not  qualified  it  is 
the  same  thing  as  if  they  had  given  no  votes  at  all ; in  which 
case  it  is  not  disputed  that  silence  was  constructive  consent.” 

In  the  case  of  Rex  v . Blissell,  upon  a motion  for  a new  trial. 
Lord  Mansfield,  addressing  the,  counsel  for  the  crown,  who 
was  arguing  that  the  disqualification  was  not  notorious,  said  : 

“Do  you  doubt  that  if  he  is  really  disqualified,  whether 
such  disqualification  is  notorious  or  not,  that  the  votes  given 
for  him  are  thrown  away?  In  another  jurisdiction,  if  the 
disqualification  is  notorious,  it  does  more  ; it  elects  the  other 
party,  and  of  this  you  can  have  no  doubt.”  Vide  Haywood’s 
County  Elections,  p.  533;  Wallace  v.  Simpson,  Ho.  R.,  41st 
Cong.,  2d  sess.,  No.  71,  p.  1. 

In  the  case  of  King  v.  Parry,  14  East.,  549,  it  was  ruled  : 

“ When  a candidate  is  disqualified  for  sitting  in  Parliament, 
and  notice  thereof  is  given  to  the  electors,  all  votes  given  for 
such  candidate  will  be  considered  thrown  away,  and  the  other 
candidate,  with  a minority  of  votes,  will  be  in  a position  to 
claim  the  seat  on  proof  of  the  existence  of  the  disqualifica- 
tion.” 

The  doctrine  laid  down  in  Haywood  on  Elections,  and  nu- 
merous cases  there  cited,  is,  “that  voters  must  have  notice  of 
the  ineligibility  of  the  candidate,  so  that  the  voting  for  him 
is  willful  obstinacy  and  misconduct  upon  the  part  of  the  voters .” 
In  principle  it  seems  not  to  be  distinguishable  whether  the 
circumstances  of  disqualification  be  within  the  knowledge  of 
the  electors  from  its  general  notoriety,  or  whether  it  is 


Cl.  1.]  INTIMIDATION,  346,  347. 

brought  within  their  observation  from  actual  notice.”  Male 
on  Elections,  p.  111. 

In  Cushing’s  Law  and  Practice  of  Legislative  Assemblies, 
(p.  66,)  it  is  said,  after  quoting  the  English  decisions : 

“In  this*  country  it  is  equally  true  that  the  election  of  a 
disqualified  person  is  absolutely  void,  and  in  those  States 
where  a plurality  elects,  and  where  the  votes  are  given  orally, 
as  in  England,  votes  given  for  a candidate  after  notice  of  his 
disqualification  are  thrown  away,  and  the  candidate  having 
the  next  highest  number  of  votes  is  elected.”  Wallace  v. 
Simpson,  Id. 

In  the  case  of  Wallace  v.  Simpson,  Mr.  Simpson  admits,  in 
his  answer  to  the  notice  of  contestant,  that  he  “was  a mem- 
ber of  the  General  Assembly  of  South  Carolina  in  the  years 
1858,  1859,  and  1860 ; that  he  took  the  oath  as  such  to  sup- 
port the  Constitution  of  the  United  States ; that  he  voted  for 
the  call  of  the  convention  which  passed  the  ordinance  of  se- 
cession ; that  he  entered  the  Confederate  army,  and  served 
as  a major  and  lieutenant  colonel  until  the  close  of  the  year 
1863,  when  he  was  elected  to  the  Confederate  Congress,  and 
that  he  continued  a member  of  said  Congress  until  the  close 
of  the  war;  that  he  has  engaged  in  open  war  against  the 
United  States,  and,  as  a member  of  the  Confederate  Congress, 
he  did  all  he  could  in  an  honorable  way  to  advance  the  cause 
in  which  he  was  engaged.”  Wallaces.  Simpson,  Id.,  4.  The 
voters,  by  these  public  acts,  were  thoroughly  informed  of  the 
ineligibility  of  Mr.  Simpson,  and  they  are  presumed  to  have 
known  of  the  disqualifying  article  of  the  Constitution  of  the 
United  States.  They  are  presumed  to  have  known  that  he 
had  been  a member  of  the  General  Assembly  of  South  Caro- 
lina ; that  he  took  an  oath  to  support  the  Constitution  of  the 
United  States  as  said  member;  and  that  he  was  a member 
of  the  Confederate  Congress.  These  are  presumptions  of 
law  which  charge  these  electors  with  constructive  notice. 

“When  the  ineligibility  of  a candidate  arises  from  his 
holding  or  having  held  a public  office,  the  people  within  the 
jurisdiction  of  such  office  are  held  in  law  to  know,  and  are 
chargeable  with  notice  of  such  ineligibility.”  Vide  Grant  on 
Corporations,  p.  109;  Wallace  v.  Simpson,  41st  Cong.,  2d 
sess.,  Ho.  Rep.,  No.  71,  p.  3. 

The  weight  of  authority,  reason,  and  the  English  cases  are 
against  counting  the  votes  for  a candidate  so  notoriously  dis- 
qualified. Id. 

347.  Intimidation.  In  the  case  of  Harrison  v.  Da- 
vis, Contested  Election  Cases,  vol.  2,  which  is  probably  the 
leading  case  upon  the  question,  it  is  ruled  “that  if  so  many 
individuals  were  excluded  by  violence  and  intimidation  as 
would,  if  allowed  to  vote,  have  given  the  contestant  the  ma- 


351 


Notice. 


Wallace  v. 
Simpson. 


Ineligi 

bility. 


What  effect 
has  intimi- 
dation ? 


[Art.  I,  Sec.  5, 


352 


Prece- 

dents. 


The  con- 
clusion. 


Qualifica- 
tion of  the 
rule. 


On  whom 
rests  the 
burden  of 
proof? 


BURDEN  OP  PROOF,  347,  348. 

joritv,  this  would  have  been  in  law  decisive  of  the  case.” 
This  doctrine  is  conceded  in  the  minority  report  in  the  recent 
case  of  Hunt  v.  Sheldon.  But  if  we  had  no  precedent,  the 
committee  would  not  hesitate  to  decide  that  where  there  was 
such  violence  and  bloodshed  as  would  intimidate  men  of  or- 
dinary firmness,  and  where  a sufficient  number  of  voters  to 
have  changed  the  result  were  kept  from  the  polls  by  reason 
of  this  intimidation,  it  would  be  as  fatal  to  the  poll  as  if  the 
election  board  had  been  controlled  by  intimidations.  In  the 
recent  cases  acted  on  by  the  House  from  Louisiana,  it  was 
contended  that  there  was  no  violence  used  at  the  polls,  and 
therefore  there  was  no  actual  obstruction  to  a fair  election. 
In  this  instance,  according  to  the  evidence,  there  was  a con- 
spiracy  to  prevent  a free  election.  Wallace  v.  Simpson,  Id. 

The  committee  proceeded  to  enumerate  the  terrorism  pro- 
duced by  the  secret  organization  of  which  Simpson  was  a 
member,  the  murders  and  outrages  perpetrated  upon  f reed- 
men  and  Union  men ; the  large  numbers  kept  from  the  polls ; 
the  illegality  in  the  mode  of  conducting  the  election,  and 
from  the  facts  conclude  that  but  for  these  outrages  Wallace 
would  have  been  elected,  and  on  page  15  conclude  : 

“ Under  any  one  of  the  three  views  here  presented  Colonel 
A.  S.  Wallace  is  entitled  to  the  seat,  and,  when  all  these 
propositions  are  united,  we  consider  the  claim  as  conclu- 
sively and  unanswerably  established.  The  committee,  there- 
fore, offer  the  following  resolution  : 

“ Resolved , That  A.  S.  Wallace  was  duly  elected  a member 
of  the  Forty-first  Congress  from  the  fourth  district  of  South 
Carolina,  and  is  entitled  to  the  seat  he  claims  in  this  House.” 

But  it  has  been  held  that  intimidation  and  violence  at  the 
polls  are  not  sufficient  legal  objection,  unless  such  force  was 
employed  as  was  sufficient  to  arrest  the  election  and  prevent 
men  of  ordinary  firmness  from  voting.  Harrison  v.  Davis, 
3 Contested  Elections,  (1861,)  341. 

If  the  intimidation  and  violence  be  such  as  to  prevent  a 
fair  election,  it  ought  to  be  set  aside,  and  referred  back  to 
the  polls.  Bruce  v.  Loanduysen,  3 Contested  Elections,  482  ; 
52  Globe,  2156  to  2211. 

348.  Burden  of  Proof.  He  who  denies  the  qualifi- 
cation of  a member  holds  the  burden  of  proof,  although  a 
negative  is  to  be  proved.  (Rogers’  Law  and  Practice  of 
Election  Committees,  116.)  The  New  Jersey  Case,  final 
report,  8 July,  1840,  Contested  Elections,  26.  And  the 
same  is  the  ride  as  to  voters.  (3  Douglas,  219.)  If  a per- 
son of  foreign  birth  be  challenged,  he  shall  prove  his  right  to 
vote  at  the  polls;  if  he  vote  without  being  challenged,  the 
contestant  who  alleged  the  still  existing  alienage  shall  prove 
it.  Contested  Elections,  26. 


PUNISH  ITS  MEMBERS,  349. 


353 


Cl.  2.] 


2 Bach  House  may  determine  the  Rules  of  its 
Proceedings,  punish  its  Members  for  disorderly  Be- 
havior, and,  with  the  Concurrence  of  two-thirds, 
expel  a Member. 

349.  “Each  house  may  determine  the  rules  of 
its  proceedings.”  The  right  claimed  under  this  clause 
to  expel  the  President.  Senator  Sumner,  3 Trial  of  the 
President,  250. 

“Punish  its  members  for  disorderly  behavior.” 
"Nothing  is  said  of  the  offense.  Senator  Sumner,  3 Trial  of 
the  President.  250. 

The  House  of  Commons  of  England  punished  Sir  Francis 
Burdett  (who  was  himself  a member)  for  a libel  against  the 
House  by  imprisoning  him  in  the  tower  of  London.  Sir 
Francis  sued  the  speaker  of  the  House,  the  sergeant-at-arms, 
and  the  lieutenant  of  the  tower.  They  all  pleaded  justifi- 
cation under  the  order  of  the  House,  and  the  warrants  of  the 
speaker.  The  issues  were  made  up,  but  the  main  point  was 
ruled  upon  demurrer  to  the  plea  of  justification  by  the 
speaker.  Burdett  v.  Caiman,  13  East.,  27,  (new  edition,  7 
East.,  30;)  Burdett  v.  Abbot,  speaker  of  the  House  of  Com- 
mons, 14  East.,  1,  8,  11 ; Phila.  Ed.,  vii,  1 ; S.  C.,  4 Taunton, 
402  ; same  cases  in  the  House  of  Lords,  5 Dowl.  Pari.  R., 
165.  These  cases  exhaust  the  whole  learning  as  to  the  priv- 
ileges of  members  of  Parliament.  The  point  finally  settled 
was  that  the  House  of  Commons  has  the  power  of  committing 
for  contempt,  and  that  a committing  for  a libel  was  a com- 
mitment for  contempt. 

The  particular  facts  and  circumstances  out  of  which  the 
contempt  arose  need  not  be  set  forth  in  the  warrant.  Bur- 
dett v.  Abbot,  5 Dowl.  Pari.  R.,  199. 

“It  is  not  pretended  that  the  exercise  of  a general  crim- 
inal jurisdiction  is  any  part  of  their  privileges.”  Burdett  v. 
Abbot,  5 Howe  Pari.  Cases,  174. 

Lord  Holt  said,  in  The  Queen  v.  Paty,  2 Ld.  Raymond, 
1105,  “he  made  no  question  of  the  power  of  the  House  of 
Commons  to  commit ; they  might  commit  any  man  for  offer- 
ing an  affront  to  a member.”  But  Lord  Ellenborough  said, 
“this  must  be  understood  as  an  affront  to  a member  as  such.” 
And  when  Lord  Holt  said  “ they  (the  Commons)  might  com- 
mit for  a crime,”  Lord  Ellenborough  said,  “tiffs  I presume 
must  be  intended  of  a commitment  for  a crime  in  order  to 
an  impeachment ; otherwise  he  would  admit  them  to  have  a 
general  criminal  jurisdiction,  which  certainly  he  could  not 
mean  to  attribute  to  them.”  Burdett  v . Abbot,  14  East., 
Phila.  Ed.,  vii,  356. 


What  are 
the  powers 
of  the 
House  over 
its  own 
members  ? 


What  was 
Burdett’s 
case  ? 


Has  the 
House  gen 
eral  crim 
inal  juris- 
diction? 


354 


PERSONS  NOT  MEMBERS,  349.  [Art.  I,  Sec. 5. 


Not  mem- 
bers. 


Pat.  Woods’ 
Case. 


Page  48. 


Robert- 
son’s re- 
port. 


How  was  it 
done  ? 


Persons  not  members.  Since  these  notes  were  pre- 
pared, several  cases  have  become  precedents  not  yet  notable 
in  history,  blit  not  the  less  remarkable  as  an  exercise  of 
power.  That  of  Patrick  Woods  passed  off  with  very  little 
comment,  as  well  because  of  the  brutality  of  the  assault  upon 
Mr.  Porter,  the  insignificance  of  Woods,  and  the  general  fact 
that  the  great  landmarks  of  individual  liberty  have  been  grow- 
ing fainter  and  fainter.  Woods  assaulted  Mr.  Porter,  a mem- 
ber of  the  House  in  the  city  of  Richmond,  Virginia,  and  struck 
him  several  violent  blows.  The  parties  were  perfect  strangers 
to  each  other,  and  there  was  no  provocation  for  the  assault. 
Woods  was  arrested  and  brought  within  the  proper  jurisdic- 
tion of  a criminal  court  of  Virginia.  But,  upon  com  paint  to 
the  Speaker,  a warrant  was  issued,  and  Woods  was  brought 
to  Washington.  The  case  was  referred  to  the  Judiciary  Com- 
mittee of  the  House,  which  reported  a resolution  of  contempt. 
Woods  was  not  heard,  as  General  Sam  Houston  had  been  for 
an  assault  upon  a member  on  Pennsylvania  Avenue.  But, 
without  hearing,  W.  was  found  guilty,  and  resolved  into  prison 
for  a term  extending  beyond  the  session.  The  precedent  is 
certainly  one  not  to  "be  fallowed. 

The  case  of  Patrick  Woods  did  not  escape  Mr.  Robertson,  the 
author  of  that  able  work,  Robertson’s  Practice.  In  the  pref- 
ace to  the  sixth  volume  of  that*work,  he  gives  a history  of 
that  case,  not  the  less  meritorious  as  to  the  great  principle, 
because  it  is  weakened  by  the  implied  denial  that  Porter  was 
a member  of  Congress. 

44  It  appears  from  the  Globe,  p.  5422,  that,  on  the  7th  day  of 
July,  J.  G.  Blaine,  Speaker  of  the  House  of  Representatives, 
addressed  to  4 JSTehemiah  G.  Ordway,  Esq.,  Sergeant-at- 
arms,’  a document  reciting  the  resolution  that  Patrick  Woods 
was  in  contempt,  and  telling  Mr.  O.  he  was  required  to  exe- 
cute it ; and  the  latter  made  return  that  he  had  executed  his 
warrant  upon  Patrick  Woods  by  delivering  him  to  the  warden 
of  the  jail  in  the  District  of  Columbia,  together  with  a copy 
of  that  warrant,  and  the  following  further  order  : 


44  4 To  the  Warden  of  the  Jail  of  the  District  of  Columbia  : 

44  4 Sir  : Pursuant  to  the  order  of  the  United  States  House  of 
Representatives,  a true  copy  of  which  is  hereto  annexed,  you 
are  hereby  required  to  receive  Patrick  Woods  into  the  jail 
aforesaid,  and  him  there  detain  for  the  full  term  of  three 
months  named  in  said  order  of  the  United  States  House  of 
Representatives,  and  you  will  not  surrender  said  Woods  to  any 
authority  except  that  issuing  from  said  House  of  Representa- 
tives, until  the  expiration  of  his  sentence , without  further 
orders.  N.  G.  Ordway, 

44  4aS 'ergeant-at-Arms  U . S.  House  of  Representatives .’  • 
44  Under  which  are  these  words  : 4 1 have  this  day  received 
into  the  jail  of  the  District  of  Columbia  the  above-named 
Patrick  Woods.  John  S.  Crocker, 

44  4 Warden  United  States  Jail, 

44  ‘per  D.  B.  Mack.’ 


Cl.  2.] 


PERSONS  NOT  MEMBERS,  349. 


355 


“In  1841-2,  as  to  any  legislative  body  other  than  a House  of 
the  British  Parliament,  the  ablest  British  jurists  (see  4 Moore’s 
P.  C.  C.,  83,  88)  concurred  in  holding  that,  according  to  the 
common  law , the  power  of  committing  for  a contempt,  not  in 
the  presence  of  the  assembly , is  not  incident  to  a local  legisla- 
ture. Burdett  v.  Abbot,  14  East.,  137,  cited  in  Beaumont  v. 
Barrett,  1 Moore’s  P.  C.  C.,  76.  This  case  being  followed  by 
another  in  1858,  (Fenton  v.  Hampton,  11  Moore’s  P.  C.  C., 
91,)  was,  in  1866,  ‘taken  to  have  decided  conclusively  that 
the  legislative  assemblies  in  the  British  colonies  have,  in  the 
absence  of  expressgrant,  (the  case  in  1864,  of  “despotism  within 
a despotism,”  turned  upon  the  construction  of  the  express 
grant.)  Dill  v.  Murphy,  1 Moore’s  P.  C.  C.,  (N.  S.,)  507,  no 
power  to  adjudicate  upon  or  punish  for  contempts  committed 
beyond  their  walls.’ 

“Hence  the  action  of  trespass  was  maintained  in  1858  against 
the  Speaker  of  the  House  and  the  Sergeant-at-arms.  11 
Moore’s  P.  C.  C.,  91.  And,  in  1866,  against  the  Speaker  and 
ten  members  of  the  House.  4 Moore’s  P.  C.  C.,  (N.  S.,) 
204,  207,  221. 

“As  to  a local  legislature,  admitting  that,  4 to  the  full  extent 
of  every  measure  which  it  may  be  really  necessary  to  adopt 
to  secure  the  free  exercise  of  their  legislative  functions, 
they  are  justified  in  acting  by  the  principle  of  the  common 
law,’  ‘yet,’  said  Parke,  B.,  ‘the  power  of  punishing  any 
one  for  just  misconduct  as  a contempt  of  its  authority,  and 
adjudicating  upon  the  fact  of  such  contempt,  and  the  mea- 
sure of  punishment,  as  a judicial  body,  irresponsible  to  the 
party  accused,  whatever  the  real  facts  may  be,  is  of  a different 
character,  and  by  no  means  essentially  necessary  for  the  ex- 
ercise of  its  functions  by  a local  legislature,  whether  repre- 
sentative or  not.  All  these  functions  may  be  well  performed 
without  this  extraordinary  power,  and  with  the  aid  of  the 
ordinary  tribunals  to  investigate  and  punish  contemptuous  in- 
sults and  interruptions.’  Keilly  v.  Carson,  &c.,  4 Moore’s 
P.  C.  C.,  88. 

“ ‘ If  a member  of  a colonial  house  of  assembly  be  guilty  of 
disorder  by  conduct  in  the  house  whilst  sitting,  he  maybe 
removed,  or  excluded  for  a time,  or  even  expelled  ; but  there 
is  a great  difference  between  such  powers  and  the  judicial 
power  of  inflicting  a penal  sentence  for  the  offense.  The 
right  to  remove  for  self-security  is  one  thing,  the  right  to  in- 
flict punishment  is  another.  The  former  is,  in  their  lord- 
ship’s judgment,  all  that  is  warranted  by  the  legal  maxim 
that  has  been  cited,  but  the  latter  is  not  its  legitimate  conse- 
quence.’ ‘If  the  good  sense  and  conduct  of  members  of  the 
colonial  legislature  prove,  as  in  the  present  case,  insufficient 
to  secure  order  and  decency  of  debate,  the  law  would  sanc- 
tion the  use  of  that  degree  of  force  which  might  be  necessary 
to  remove  the  person  offending  from  the  place  of  meeting, 
and  to  keep  him  excluded.’  ” 


Robert- 
son’s 
notes  ? 


356 


CASE  IN  FAVOR  OF  LIBERTY,  350.  [Art.  I,  Sec.  5, 


Citations.  4 4The  same  rule  would  apply  a fortiori  to  obstructions  caused 
by  any  person  not  a member.  And  whenever  the  violation 
of  order  amounts  to  a breach  of  the  peace  or  other  legal  offense, 
recourse  may  be  had  to  the  ordinary  tribunals.  Doyle  v. 
Falconer,  1 Moore’s  P.  C.  C.,  (M.  S.,)  219.  For  the  same 
text  see  Speakes  v.  Glass,  3 Moore’s  P.  C.  C.,  560-573.” 

What  was  350.  A GREAT  CASE  IN  FAVOR  OF  LIBERTY.  The 
Doytey6  °f  case  Doyle  v-  Falconer,  1 Moore’s  Reports  of  Privy  Council 
Falconer  ? Appeals,  is  an  opinion  having  so  much  of  the  ring  of  the  old- 
fashioned  notions  of  civil  liberty,  that  the  editor  feels  obliged 
to  make  the  following  long  extract  from  it,  which  is  entitled 
to  the  more  respect,  because  the  tribunal  was  composed  of 
the  most  eminent  lawyers  of  England. 

4 4 First.  Does  the  house  of  assembly  possess  the  authority 
which  the  pleas  allege  did  always  of  right  belong  to  it  and 
to  legislative  assemblies  in  other  parts  of  the  dominions  of 
Her  Majesty,  viz  : An  authority  to  commit  and  punish  for 
contempts  committed,  and  for  interruptions  and  obstructions 
given  to  the  business  of  the  said  house  of  assembly  by  its 
members  or  others  in  its  presence  and  during  its  sittings? 

44  Secondly.  Assuming  the  existence  of  this  alleged  author- 
ity to  be  established,  were  the  warrants  issued  by  virtue  of  it 
sufficient  in  law? 

44  The  first  question,  affecting  as  it  does  the  privileges  of  the 
legislative  assemblies  in  many  of  the  dependencies  of  the 
crown,  is  one  of  importance.  When  it  first  arose  before  this 
committee,  in  the  case  of  Beaumont  v.  Barrett,  (1  Moore’s  P. 
C.  Cases,  59,)  the  learned  judges  then  sitting  decided  broadly 
that  the  power  of  punishing  contempts  is  inherent  in  every  as- 
sembly that  possesses  a supreme  legislative  authority,  whether 
they  are  such  as  are  a direct  obstruction  to  its  due  course  of 
proceeding,  or  as  such  have  a tendency  indirectly  to  produce 
such  obstruction ; and,  therefore,  that  the  legislative  assem- 
bly of  Jamaica  had  the  power  of  imprisoning  for  a contempt 
by  the  publication  of  a libel. 

44Again,  in  America,  the  Supreme  Court  of  theUnited  States, 
a tribunal  whose  judgments  are  entitled  to  the  highest  re- 
spect, held,  in  the  case  of  Anderson  v . Dunn,  6 Wheat.,  204, 
that  the  House  of  Representatives  had,  by  necessary  implica- 
tion, a general  power  of  punishing  and  committing  for  con- 
tempts, notwithstanding  that  the  lex  scripta , 44  the  Constitu- 
tion of  the  United  States,”  had  expressly  conferred  upon  it 
a power  limited  to  the  punishment  of  contempts  when  com- 
mitted by  its  own  members. 

44  It  is  admitted  that  the  case  of  Keilly  v.  Carson , 4 Moore’s 
P.  C.  Cases,  63,  which  overruled  that  of  Beaumont  v.  Barrett , 
and  has  been  followed  by  that  of  Fenton  v.  Hampton , 11 
Moore’s  P.  C.  Cases,  347,  must  here  be  taken  to  have  decided 
conclusively  that  the  legislative  assemblies  in  the  British  col- 
onies have,  in  the  absence  of  express  grant,  no  power  to  ad- 


CASE  IN  FAVOR  OF  LIBERTY,  350. 


357 


Cl.  2: 


judicate  upon  or  punish  for  contempts  committed  beyond  Want  of 
their  walls.  The  case  is  one  which,  having  regard  to  the  P°^.egrhto 
constitution  of  the  committee  before  which  it  was  argued  p 
for  the  second  time,  their  lordships  must  accept  as  an  au- 
thority of  singular  weight.  And  if  the  elaborate  judgment 
which  was  then  pronounced  has  in  terms  left  open  the  ques- 
tion which  is  raised  in  the  present  case,  it  has  stated  princi- 
ples which  go  far  to  afford  the  means  of  determining  that 
question. 

uThe  privileges  of  the  House  of  Commons,  that  of  punish- 
ing for  contempt  being  one,  belong  to  it  by  virtue  of  the  lex 
et  consuetudo  Parliament i,  which  is  a law  peculiar  to  and  in- 
herent in  the  two  Houses  of  Parliament  of  the  United  King- 
dom. It  cannot,  therefore,  be  inferred  from  the  possession 
of  certain  powers  by  the  House  of  Commons,  by  virtue  of 
that  ancient  usage  and  prescription,  that  the  like  powers  be- 
long to  legislative  assemblies  of  comparatively  recent  creation 
in  the  dependencies  of  the  crown. 

“Again,  there  is  no  resemblance  between  a colonial  house 
of  assembly,  being  a body  which  has  no  judicial  functions, 
and  a court  of  justice,  being  a court  of  record.  There  is, 
therefore,  no  ground  for  saying  that  the  power  of  punishing 
for  contempt,  because  it  is  admitted  to  be  inherent  in  the  one, 
must  be  taken  by  analogy  to  be  inherent  in  the  other. 

“If,  then,  the  power  assumed  by  the  house  of  assembly 
cannot  be  analogous  to  the  privileges  of  the  House  of  Com- 
mons or  the  powers  of  a court  of  record,  is  there  any  other 
legal  foundation  upon  which  it  may  be  rested?  It  has  not, 
as  both  sides  admit,  been  expressly  granted.  The  learned 
counsel  for  the  appellants  invoked  the  principles  of  the  com- 
mon law ; and  as  it  must  be  conceded  that  the  common  law 
sanctions  the  exercise  of  the  prerogative  by  which  the  as- 
sembly has  been  created,  the  principle  of  the  common  law, 
which  is  embodied  in  the  maxim,  “ Quando  lex  aliquid  conce - 
dit,  concederevidetur  et  illud,  sine  quo  res  ipsa  esse  non  potest ,” 
applies  to  the  body  so  created.  The  question,  therefore,  is 
reduced  to  this  : Is  the  power  to  punish  and  commit  for  con- 
tempts committed  in  its  presence  one  necessary  to  the  existence 
of  suchabodyas  the  assembly  of  Dominica,  and  the  proper  ex- 
exercise of  the  functions  which  it  is  intended  to  execute  ? It  is 
necessary  to  distinguish  between  a power  to  punish  for  a con- 
tempt, which  is  a judicial  power,  and  a power  to  remove  any 
obstruction  offered  to  the  deliberations  or  proper  action  of  a 
legislative  body  during  its  sittings,  which  last  power  is  neces- 
sary for  self-preservation.  If  a member  of  a colonial  house  of 
assembly  is  guilty  of  disorderly  conduct  in  the  house  whilst 
sitting,  he  may  be  removed,  or  excluded  for  a time,  or  even 
expelled;  but  there  is  a great  difference  between  such  powers 
and  the  judicial  power  of  inflicting  a penal  sentence  for  the 
offense.  The  right  to  remove  for  self-security  is  one  thing, 
the  right  to  inflict  punishment  is  another.  The  former  is,  in 


358 


stewart’s  case,  350-352.  [Art.i, Sec.5, 


The  Privy 

Council 

case. 


Stewart’s 

case. 


What  was 
the  case  of 
Anderson 
and  Dunn 


their  lordships’  judgment,  all  that  is  warranted  by  the  legal 
maxim  that  has  been  cited,  but  the  latter  is  not  its  legitimate 
consequence.  To  the  question,  therefore,  on  which  this  case 
depends,  their  lordships  must  answer  in  the  negative.  If 
the  good  sense  and  conduct  of  the  members  of  colonial  leg- 
islatures prove,  as  in  the  present  case,  insufficient  to  secure 
order  and  decency  of  debate,  the  law  would  sanction  the  use 
of  that  degree  of  force  which  might  be  necessary  to  remove 
the  person  offending  from  the  place  of  meeting,  and  to  seep 
him  excluded.  The  same  rule  would  appty,  & fortiori , to 
obstructions  caused  by  any  person  not  a member.  And  when- 
ever the  violation  of  order  amounts  to  a breach  of  the  peace, 
or  other  legal  offense,  recourse  may  be  had  to  .the  ordinary 
tribunals.  Doyle  v.  Falconer,  1 P.  C.  Appeals,  340. 

“But  their  lordships,  sitting  as  a court  of  justice,  have  to 
consider  not  what  privileges  the  house  of  assembljr  of  Do- 
minica ought  to  have,  but  what  by  law  it  has.  In  order  to 
establish  that  the  particular  power  claimed  is  one  of  those 
privileges,  the  appellants  must  show  that  it  is  essential  to  the 
existence  of  the  assembly,  an  incident  u sine  quo  res  ipsa  esse 
non  potest.”  Doyle  v . Falconer,  1 P.  C.  Appeals,  341. 

351.  Stewart’s  Case.  In  Stewart  v.  Blaine,  1 McAr- 
thur’s Reports  of  Appeals,  by  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  it  was  held  that,  if  the  House  of  Repre- 
sentatives had  jurisdiction  over  the  person  and  the  subject 
matter,  the  Speaker  and  the  Sergeant-at-arms,  as  ministerial 
officers  of  the  House,  were  justified  in  committing  and  hold- 
ing until  the  further  order  of  the  House.  And  Chief  Justice 
Cartter  said:  uThe  question  of  power  to  punish  (by  the 
House,  for  contempt)  was  settled  in  Anderson  v.  Dunn,  6 
Wheat.,  204.  This  authority  has  been  uniformly  acquiesced 
in  for  over  fifty  years,  and,  until  reversed,  must  be  regarded 
as  conclusive  with  this  court.” 

352.  Anderson  and  Dunn.  In  Anderson  v.  Dunn,  5 
Wheat.,  235,  Mr.  Justice  Johnson  held  that  the  Constitution 
gives  no  power  to  either  House  to  punish  for  contempt,  ex- 
cept when  committed  by  its  own  members.  Nor  does  the 
judicial  or  criminal  power  given  to  the  United  States  in 
any  part  expressly  extend  to  the  infliction  of  punishment 
for  contempt  of  either  House,  or  any  one  coordinate  branch 
of  the  Government.  But  it  was  said  that  Government  could 
not  exist  without  having  the  exercise  of  discretion  some- 
where ; that  the  abuse  of  that  discretion  rests  upon  appeals 
to  public  approbation  ; that  public  functionaries  must  be 
left  at  liberty  to  exercise  the  powers  which  the  people  have 
intrusted  to  them  ; that  the  fact  that  the  statutes  give  power 
to  the  courts  to  punish  for  contempts  in  certain  cases  does 
not  exclude  the  idea  that  the  power  exists  without  the  stat- 
utes, and  may  be  exercised  in  other  cases;  that  the  argil- 


Cl.  2.]  ANDERSON  AND  DUNN,  352. 

merits  of  coordinate  power  in  other  branches  of  the  Govern- 
ment, and  that  the  power  of  the  House  is  limited  to  its  own 
walls,  destroy  the  idea  of  implied  power ; that  the  argument 
of  previous  legislation  and  definite  definitions  within  the 
District  would  lead  to  ridiculous  absurdity ; that  by  anal- 
ogy 44 the  least  possible  power  adequate  to  the  end  proposed 
should  be  exercised,  and  the  extent  would  be  imprisonment 
during  the  session.”  (But  even  this  limitation  was  violated 
in  Pat.  Woods’  -case.)  It  was  also  said  that  the  order  of  the 
House  and  warrant  of  the  Speaker  are  only  limited  by  the 
boundaries  of  the  United  States. 

But  to  the  editor  it  has  always  seemed  that  the  many  val- 
uable arguments  noticed  in  Anderson  v.  Dunn  were  not 
answered.  It  is  now  an  admitted  maxim  that  there  is  no 
arbitrary  power  in  the  Government  of  the  United  States. 
All  officers  act  under  the  Constitution  and  laws,  and  if  their 
acts  are  not  justified  by  these,  there  is  no  justification  for 
them.  Men  cannot  be  tried  for  imaginary  or  undefined 
offenses,  nor  before  tribunals  other  than  those  established  by 
law.  To  hold  that  a single  body  of  the  House  may  first  de- 
termine what  is  a contempt,  and  then  punish  it  at  discretion, 
and  that  its  verjr  action  should  afford  justification,  is  to 
clothe  a single  branch  of  the  legislature  with  greater  power 
than  both  branches  possess.  For  no  one  can  justify  a tres- 
pass under  an  unconstitutional  law.  Nor,  indeed,  is  any  act 
ever  justifiable  when  the  tribunal  or  officer  acting  had  no 
power  or  jurisdiction  to  do  the  thing. 

That  Congress  might  pass  a code  for  punishing  contempts, 
and  referring  such  cases  to  the  judiciary  (as  has  been  at- 
tempted) is  not  denied.  But  that  either  House  is  a court, 
except  in  the  defined  cases,  is  denied. 

It  is  to  be  hoped  that  the  modifications  of  this  doctrine  of 
arbitrary  power  in  England  will  awaken  thought  in  Amer- 
ica, and  that  appropriate  legislation  will  be  substituted  for 
the  caprice  of  committees  and  the  respective  branches  of  the 
Houses.  But  for  this  there  is  little  solid  hope,  since  the  arbi- 
trary principle  in  Anderson  v . Dunn  seems  to  be  sustained  by 
the  following  authorities.  Speaking  of  that  case,  Kent  says  : 
“The  decision  of  the  Supreme  Court  is  accompanied  with  a 
course  of  reasoning  which  would  be  sufficient  to  place  the  au- 
thority of  either  house  of  Congress  to  punish  contempts  and 
breaches  of  privileges  on  the  most  solid  foundation,  indepen- 
dent of  the  absolute  authority  of  the  decision,  * * It  is  a 
power  inherent  in  all  legislative  assemblies,  and  is  essential 
to  enable  them  to  execute  their  great  trusts  with  freedom 
and  safety.  * * What  acts  shall  amount  to  a contempt  of 
either  House  of  Congress,  are  not  defined,  and  must  be  left 
to  the  judgment  and  discretion  of  the  house,  under  the  cir- 
cumstances of  each  case.”  1 Kent  Com.,  7th  ed.,  p.  250,  n. 
a ; see,  also,  Story  on  Const.,  4th  ed.,  §§  846-849 ; Cooley’s 
Const.  Limitations,  3 ed.,  p.  133;  Ex  parte  Nugent,  1 Am. 

28 


Anderson 
and  Dunn 


* 


Objection 
to  it? 


For  what 
may  mem- 
bers be  ex- 
pelled? 


360 

Authori- 

ties. 


EXPEL  A MEMBER,  352,  353.  [Art.  I, Secs. 5, 6. 

Law  Jour.,  (N.  S.,)  p.  107;  Rawle  on  Const.,  pp.  47,  48; 
Sergeant’s  Const.  Law,  p.  354;  Wickelhauser  v.  Willett,  10 
Ab.  Pra.  Rep.,  164.  [And  now  comes  the  case  of  Halle t 
Kilbourn,  another  recusant  witness,  who  refuses  to  disclose 
the  names  of  the  Washington  real  estate  pool,  and  who,  with- 
out debate  or  objection,  ha*s  been  imprisoned  until  the  fur- 
ther order  of  the  House.] 

353.  u Expel  a member.”  In  the  case  of  Benjamin 
F.  Whittemore,  the  Military  Committee  reported  a resolu- 
tion for  his  expulsion,  for  the  crime  of  selling  his  cadetship 
to  the  Military  and  Naval  Academy.  After  some  debate  the 
House  adjourned,  while  Mr.  Whittemore  was  entitled  to  the 
iloor.  When  the  resolution  was  reached  the  next  day,  the 
Speaker  announced  that  since  the  adjournment  yesterday  he 
had  received  a copy  of  Whittemore’s  telegram  to  the  governor 
of  South  Carolina  tendering  his  resignation,  and  the  govern- 
or’s reply  accepting  the  resignation ; and  therefore  Speaker 
Blaine  held  that,  in  accordance  with  the  case  of  Mr.  Matte- 
son,  of  New  York,  Mr.  W.  was  no  longer  a member  of 
the  House,  and  was  not  entitled  to  speak.  A good  deal 
of  debate  ensued,  and  a test  resolution  was  offered,  by  which 
it  was  decided,  in  effect,  that  pending  the  resolution  for  ex- 
pulsion the  member  may  resign,  and  thus  oust  the  jurisdic- 
tion over  him.  See  Journal  and  Debates  in  Whittemore’s 
case,  40th  Congress,  2d  session. 

But  t he  editor  believes  this  to  have  been  an  erroneous  pre- 
cedent. By  the  resolution  and  by  the  report  of  the  commit- 
tee the  House  obtained  jurisdiction  over  the  paiiy  and  the 
offense.  To  allow  a resignation  was  to  defeat  the  jurisdiction 
of  the  tribunal,  and  is  contraiy  to  principle.  The  acceptance 
of  the  resignation  by  the  governor  was  a matter  of  no  conse*- 
quence.  His  power  is  to  order  a new  election  where  a va- 
cancy exists.  This  may  be  created  as  well  by  exercising  an 
incompatible  office  as  b}^  resignation  or  death.  But  had  the 
House  proceeded  to  expulsion,  which  it  might  have  done,  the 
difficulty  growing  out  of  a new  election  would  not  have  been 
avoided.  Preston  Brooks,  of  South  Carolina,  was  expelled  for 
his  assault  upon  Senator  Sumner  in  the  Senate  chamber.  He 
was  elected  to  till  his  own  vacancy  which  thus  happened, 
and  he  appeared  and  took  his  seat.  The  difference  was  really 
in  the  character  of  the  offense.  The  question  of  power  was  not 
weighed  as  it  was  in  Wilkes’  Case,  in  the  House  of  Commons. 

The  last  effort  at  expulsion  grew  out  of  the  Credit  Mobilier 
investigation.  The  effort  was  to  expel  Ames  for  bribing 
members  at  a previous  session.  No  member  woqld  admit 
that  he  had  been  bribed  ; nor  was  any  member  of  the  House 
who  had  received  shares  of  the  Credit  Mobilier  stock  put 
upon  his  trial.  The  motion  to  expel  Ames  and  Brooks,  of 
New  York,  was  voted  down.  In  the  Senate,  however,  Pat- 
terson, of  New  Hampshire,  was  expelled  for  participating  in 
the  same  transactions.  See  Journals  and  Debates  and  Pat- 
terson’s appeal  (by  Caleb  Cushing)  to  the  next  Congress. 


Cl.  3,  4,  1.]  PRIVILEGED  FROM  ARREST,  355. 


361 


The  reports  of  the  investigating  committee  and  the  debates 
will  become  interesting  reading  after  the  political  atmosphere 
shall  become  purer. 


3 Each  House  shall  keep  a Journal  of  its  Proceed- 
ings, and  from  time  to  time  publish  the  same,  except- 
ing such  Parts  as  may  in  their  Judgment  require 
Secrecy;  and  the  Yeas  and  Nays  of  the  Members  of 
either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  present,  be  entered  on  the  Journal. 

4 Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  Consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  Place  than 
that  in  which  the  two  Houses  shall  be  sitting. 

Section  6.  1 The  Senators  and  Representatives  shall 
receive  a Compensation  for  their  Services,  to  be  as- 
certained by  law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony,  and  Breach  of  the  Peace,  be  privi- 
leged from  Arrest  during  their  Attendance  at  the 
Session  of  their  respective  Houses,  and  in  going  to 
and  returning  from  the  same;  and  for  any  Speech  or 
Debate  in  either  House,  they  shall  not  be  questioned 
in  any  other  Place. 


What  of  the 
journal  and 
yeas  and 
nays  ? 

Yeas  and 
Nays. 


Page  88, 
notes  53-61. 
Page  87, 
note  51. 


What  is  the 
compensa- 
tion of 
members  ? 


What  are 
the  privi- 
leges of 
members  ? 


354.  “Receive  a Compensation  for  their  Servi-  what  is  the 
CES.  ’ ’ By  the  act  of  3 March,  1873,  (vulgarly  called  the  salary-  onsen- 
grab  law,)  the  compensation  of  Senators  and  members  was  in  ators  and 
creased  to  $7,500,  and  the  act  was  made  retrospective,  so  as  to  Represen-, 
give  the  increased  salary  from  the  commencement  of  that  long  tatives? 
session.  This  raised  such  a storm  in  the  country  that  many 
Senators  and  Representatives  either  refused  to  receive  the 
increased  compensation,  or  else,  after  having  received  it,  re- 
turned it  to  the  Treasury.  Never  was  so  much  ink  shed  over 

one  subject  within  any  one  year.  At  the  next  session  of 
Congress  the  law  was  repealed,  audit  is  now  succinctly  thus  : 

Five  thousand  dollars  per  annum,  and  twenty  cents  for  every 
mile  of  travel  going  and  returning. 

355.  “Be  Privileged  from  Arrest.”  The  defend-  what  of 
ant  may  be  served  with  an  original  writ,  summons,  citation,  the  privi- 
or  other  process,  to  which  he  is  duly  required  to  plead ; but 

he  is  not  subject  to  arrest  or  to  attachment  for  contempt. 


362 


Privilege. 


What  are 
the  disqual- 
ifications of 
Senators 
and  Repre- 
sentatives ? 


What  is  the 
effect  of  the 
military 
office? 


OFFICERS  NOT  MEMBERS,  355,  356.  [Art.  1,  Sec. 6,  7, 

McKenna  v.  Sprague,  Supreme  Court  of  the  District  of  Co- 
lumbia, by  Judge  Wylie,  1868;  Woolleys.  Butler,  Superior 
Court  of  tbe  city  of  Baltimore,  1868 ; Gentry  v.  Griffith,  27 
Tex.  462.  This  seems  to  have  been  the  extent  of  the  privilege- 
under  the  acts  of  Parliament  and  the  decisions  in  England 
prior  to  the  adoption  of  our  Constitution.  St.  12  and  13  Wil- 
liam III,  chap.  3,  (1700 ;)  St.  10  Geo.  Ill,  chap.  50.  The  mem- 
ber of  Parliament,  if  arrested,  could  make  an  attorney  and 
be  discharged.  But  it  seems  that  the  suit  was  not  dismissed. 
Bnrdett  v.  Abbot,  14  East.,  128 ; S.  C.,  Phila.  ed.,  355  ; Ben- 
yon  v.  Evelyn,  Bridgman’s  Pep.,  324,  337;  S.  C.,  14  Car.  5 
Roll.,  2558;  1 Tidd’s  Practice,  116,  117 ; 1 Bl.  Comm.,  162, 
166.  The  doctrine  is  fully  explained  in  Burdett  v.  Abbot, 
14  East.,  128;  Philadelphia  edition,  7 East.,  351.  An  ar- 
rest is  made  by  a corporal  seizing  or  touching  the  defend- 
ant’s body.  3 Black.  Comm.,  289;  Wood’s  Institutes,  575; 
Legrandr.  Bedinger,  4 Mon.,  350.  A restriction  of  the  right 
of  locomotion.  Hart  v.  Flynn,  8 Dana,  190. 

The  definitions  do  not  comprehend  the  service  of  a process, 
by  which  no  imprisonment,  no  restraint  of  liberty,  no  bail  is 
required,  but  only  a notice  or  copy  of  process.  Legrand  v. 
Bedinger,  4 Mon.,  350 ; Catlett  v.  Morton,  4 Litt.,  123;  Hart 
v.  Flynn,  8 Dana,  190. 

The  exemption  from  being  impleaded  mereljr  seems  to 
have  been  given  up.  Donn  v.  Walsh,  4 Pryn’s  Pari.  Writs, 
743 ; Rivers  v.  Cozzins,  Id.,  755 ; Roo  v.  Sadcliff,  1 Hatsel,  51 . 

They  are  not  privileged  from  the  service  of  citation  in  civil 
cases.  Gentry  v.  Griffeth,  27  Tex.,  462.  But  by  the  consti- 
tutions of  Alabama,  Arkansas,  California,  Indiana,  Kansas, 
Missouri,  Nebraska,  Oregon,  Wisconsin,  and  perhaps  some 
other  States,  the  members  are  exempt  from  the  service  of 
civil  process  while  going  to,  remaining  at,  and  returning 
from  the  Legislature;  and  so  it  ought  to  be  everywhere. 
The  House  may  order  the  release  of  members  and  the  courts 
may  relieve  on  habeas  corpus . (Cushing  Par.  Law,  §§  546- 
597.)  Cooly’s  Const.  Law,  133,  134. 

2No  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any 
civil  Office  under  the  Authority  of  the  United 
States,  which  shall  have  been  created,  or  the  Emolu- 
ments whereof  shall  have  been  increased  during 
such  Time  ; and  no  Person  holding  any  Office  under 
the  United  States  shall  be  a Member  of  either 
House  during  his  Continuance  in  Office. 

356  uAnd  no  person  holding  any  office  under 
the  United  States  shall  be  a member  of  either 
House  during  his  continuance  in  office.”  The  ac- 


Cl.  1,  2, 1,  2.] 


REVENUE  AND  VETO. 


363 


ceptance  of  a military  appointment  as  a colonel  of  volunteers, 
and  being  mustered  into  the  army  of  the  United  States, 
although  the  officer  was  commissioned  by  the  governor,  was 
holding  an  office  under  the  United  States,  which  vacated  the 
seat  in  Congress,  and  the  governor  had  the  right  to  assume 
that  there  was  a vacancy  and  order  an  election.  Cases  of 
Baker  and  Zell,  3 Contested  Elections,  92-96.  Speeches  of 
Mr.  Cattel  and  Mr.  Sclienck,  published  in  the  same  place. 
This  principle  was  affirmed  in  Byington  v.  Vandever,  3 Con- 
tested Elections,  (11  April,  1862,)  pp.  395,  400,  402. 

In  the  contest  of  Bowen  v.  De  Large,  after  the  House  got 
jurisdiction  of  the  matter,  Bowen  was  elected  to  the  Legisla- 
ture of  South  Carolina,  and  served  a part  or  the  whole  of  a 
session.  Paschal  moved,  before  the  committee,  to  dismiss 
the  contest,  on  the  ground  that  the  offices  of  State  legislator 
and  member  of  Congress  are  incompatible,  and  the  accept- 
ance of  the  former  is  an  abandonment  of  the  latter.  But 
Bowen,  either  after  or  before  the  motion  was  made,  resigned 
his  seat  in  the  Legislature,  and  the  committee  overruled  the 
motion.  A Representative  does  not  become  a member  until 
he  takes  the  oath  of  office,  therefore  lie  may  lawfully  hold 
any  office  after  his  election  and  until  that  time.  14  Op.,  408. 

Section  7.  hill  Bills  for  raising  Revenue  shall  orig- 
inate in  the  House  of  Representatives  ; but  the  Sen- 
ate may  propose  or  concur  with  Amendments,  as  on 
other  Bills. 

2 Every  Bill  which  shall  have  passed  the  House 
of  Representatives  and  the  Senate,  shall,  before  it 
become  a Law,  be  presented  to  the  President  of  the 
United  States.  If  he  approve,  he  shall  sign  it,  but  if 
not,  he  shall  return  it,  with  his  Objections,  to  that 
House  in  which  it  shall  have  originated,  who  shall 
enter  the  Objections  at  large  on  their  Journal,  and 
proceed  to  reconsider  it.  If  after  such  Reconsidera- 
tion two  thirds  of  that  House  shall  agree  to  pass  the 
Bill,  it  shall  be  sent,  together  with  the  Objections, 
to  the  other  House,  by  which  it  shall  likewise  be  re- 
considered, and  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a Law.  But  in  all  such  Cases 
the  Votes  of  both  Houses  shall  be  determined  by 
Yeas  and  Hays,  and  the  Names  of  the  Persons 


Incompati- 

bility. 


Where 
shall  the 
bijl  for 
raising  rev- 
enue orig- 
inate ? 

Page  90, 
note  64,  65. 
Define 
what  is 
called  the 
veto 
power. 

Page  91, 
notes  66-69. 


364 


BILLS,  357. 


[Art.  I,  Sec.  7, 8, 


Yeas  and 
nays. 

If  the  bill 
be  not  re- 
turned? 


What  ac- 
tion shonld 
be  taken 
immediate- 
ly? 


What  is  the 
question  to 
the  House? 


Is  the  con- 
sideration 
a privi- 
leged ques- 
tion? 


voting  for  and  against  the  Bill  shall  be  entered  on 
the  Journal  of  each  House  respectively.  If  any  Bill 
shall  not  be  returned  by  the  President  within  ten 
Days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a Law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  Adjournment  prevent  its  Eeturn,  in  which 
case  it  shall  not  be  a Law. 

357.  “Every  bill  which  shall  have  passed  the 
House  of  Representatives  and  the  Senate,  shall, 

BEFORE  IT  BECOME  A LAW,  BE  PRESENTED  TO  THE  PRESI- 
DENT of  the  United  States  ; if  he  approve  he  shall 

SIGN  IT,  BUT  IF  NOT,  HE  SHALL  RETURN  IT,  WITH  HIS  OB- 
JECTIONS, to  that  House  in  which  it  shall  have 
ORIGINATED,”  &c.  When  the  bill  is  returned  with  the 
President’s  objections,  it  is  usual  to  have  the  message  imme- 
diately read.  Journals  1 sess.,  28  Cong.,  pp.  1081,  1084;  1 
sess.,  29  Cong.,  1209,  1214;  2 sess.,  33  Cong.,  pp.  397,  411 ; 1 
sess.  34  Cong.,  p.  1420.  And  for  the  House  to  proceed  to  the 
reconsideration  of  the  bill.  Ib.  Or  to  postpone  its  recon- 
sideration. House  Journal,  1 Sess.  21  Cong.,  p.  742.  And  the 
message  and  bill  may  be  referred  to  the  appropriate  commit- 
tee, and  postponed  until  the  next  session  of  the  same  Congress, 
as  in  the  case  of  Best  and  Wallace,  (42  Cong.,  2 session,  Sen- 
ate Journal,)  which  were  referred  and  reported  at  the  3d  Ses- 
sion. H.  R.  Rep.  No.  42. 

Action  shall  not  be  taken  where  less  than  a quorum  is 
present.  1 sess.,  33  Cong.,  House  Journal,  p.  1341. 

A veto  message  and  bill  may  be  referred,  or  the  message 
alone,  and  the  bill  laid  on  the  table.  Journal,  2 sess.,  27 
Cong.,  pp.  1253-1257 ; Globe,  same  day,  p.  1218. 

The  main  question  is,  “ Will  the  House  on  reconsideration 
agree  to  pass  the  bill?  ” House  Journal,  2 sess.,  27  Cong.,  p. 
1051;  1 sess.,  28  Cong.,  p.  1085;  1 sess.,  29  Cong.,  p.  1218; 
Barclay’s  Digest,  214. 

The  Speaker  said  “the  motion  to  proceed  to  the  considera- 
tion of  a vetoed  bill,  with  the  objections  of  the  President,  is 
a privileged  question  under  the  Constitution.”  And  the 
Houses  sustained  the  Speaker  by  vote.  Cong.  Globe,  2 sess., 
27  Cono;.,  p.  905;  2 sess.,  28  Cong.,  p.  396;  Barclay’s  Dig., 
p.  215." 

A vote  on  the  passage  of  a vetoed  bill  cannot  be  recon- 
sidered. Cong.  Globe,  1 sess.,  28  Cong.,  pp.  672,  677 ; same 
sess.,  1093-1098. 

Where  the  President  does  not  approve  a bill,  and  is  pre- 
vented by  the  adjournment  of  Congress  from  returning  it 
with  his  objections,  it  is  usual  for  him  to  inform  the  House 


Cl.  3,  1-8.] 


GENERAL  POWERS. 


365 


wherein  it  originated,  at  the  next  session,  of  his  reasons  for 
not  approving  it.  Journal,  2 sess.,  12  Cong/,  p.  544 ; Id.,  1 
sess.,  30  Cong.,  p.  82;  Id.,  2 sess.,  35  Cong.,  p.  151;  Bar- 
clay’s Dig.,  215. 

3Every  Order,  Resolution,  or  Vote,  to  which 
the  Concurrence  of  the  Senate  and  House  of  Repre- 
sentatives may  be  necessary  (except  on  a Question 
of  Adjournment,)  shall  be  presented  to  the  Presi- 
dent of  the  United  States;  and,  before  the  same 
shall  take  Effect,  shall  be  approved  by  him,  or,  being 
disapproved  by  him,  shall  be  repassed  by  two  thirds 
of  the  Senate  and  House  of  Representatives,  ac- 
cording to  the  Rules  and  Limitations  prescribed  in 
the  Case  of  a Bill. 

Section  8.  The  Congress  shall  have  Power — 

*To  lay  and  collect  Taxes,  Duties,  Imposts,  and 
Excises  to  pay7  the  debts  and  provide  for  the  com- 
mon' Defense  and  general  Welfare  of  the  United 
States;  but  all  Duties,  Imposts,  and  Excises  shall  be 
uniform  throughout  the  United  States; 

2 To  borrow  Money  on  the  Credit  of  the  United 
States; 

3 To  regulate  Commerce  with  foreign  Nations, 
and  among  the  several  States,  and  with  the  Indian 
Tribes ; 

4 To  establish  an  uniform  Rule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States; 

5 To  coin  Money,  regulate  the  Value  thereof,  and 
of  foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ; 

6 To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States; 

7 To  establish  Post  Office^  and  Post  Roads; 

8 To  promote  the  Progress  of  Science  and  useful 


What  or- 
der, resolu- 
tion, or  vote 
must  be 
submitted 
to  the 
President? 


What  are 
the  powers 
of  Con- 
gress? 


Money? 


Commerce? 


Naturaliza- 
tion ? 

Bankrupt- 

cy? 

Coins? 

Weights 
and  meas- 
ures ? 

Counter- 

feiting? 

Post  offi- 
ces? 
Patents 


366 


GENERAL  POWERS. 


[Art.  I,  Sec.  8, 


and  copy- 
rights? 


Inferior 

tribunals? 


Crimes  ? 


War,  &c. 


Armies? 


Navy? 

Rules? 


Militia? 


Organizing 

militia? 


The  federal 
District 
and  forts 
and  arsen- 
als? 


Arts,  by  securing  for  limited  Times  to  Authors  and 
Inventors  the  exclusive  Eight  to  their  respective 
Writings  and  Discoveries; 

9 To  constitute  Tribunals  inferior  to  the  Supreme 
Court; 

10  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offenses  against  the 
Law  of  Nations; 

11  To  declare  War,  grant  Letters  of  Marque  and 
Eeprisal,  and  make  Rules  concerning  Captures  on 
Land  and  Water ; 

12To  raise  and  support  Armies,  but  no  Appropria- 
tion of  Money  to  tffat  Use  shall  be  for  a longer  Term 
than  two  Years; 

13 To  provide  and  maintain  a Navy; 

14 To  make  Rules  for  the  Government  and  Regula- 
tion of  the  land  and  naval  Forces; 

15  To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections,  and 
repel  Invasions; 

16  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States,  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of 
training  the  Militia,  according  to  the  Discipline  pre- 
scribed by  Congress; 

17  To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever  oyer  such  District  (not  exceeding  ten 
Miles  square)  as  may,  by  Cession  of  particular  States 
and  the  Acceptance  of  Congress,  become  the  Seat  of 
the  Government  of  the  United  States;  and  to  exer- 
cise like  Authority  over  all  Places  purchased  by  the 
Consent  of  the  Legislature  of  the  State  in  which  the 
same  shall  be,  for  the  Erection  of  Forts,  Magazines, 


Cl. 9-18.]  TAXES,  358,  359. 


367 


Arsenals,  Dock-yards,  and  other  needful  Buildings;  Arsenals, 
and 

18 To  make  all  Laws  which  shall  be  necessary  and  General 

J power? 

proper  for  carrying  into  Execution  the  foregoing 
Powers,  and  all  other  Powers  vested  by  this  Consti- 
tution in  the  Government  of  the  United  States,  or  in 
any  Department  or  Officer  thereof. 


358.  u Congress  shall,  have  Power  to  lay  and 
collect  Taxes,  Duties,  Imposts,  and  Excises.”  More 
comprehensive  words  could  not  have  been  used.  Yeazie 
Bank  v.  Fenno,  8 Wall,  540.  The  rule  is,  that  the  power  of 
taxation  is  concurrent  in  the  two  governments.  The  States 
cannot  tax  the  instrumentalities  of  the  United  States,  or  its 
securities,  and  the  supplies  procured  by  contractors.  But  it 
may  tax  the  property  of  such  persons  situated  in  the  State. 
Thus  it  may  tax  the  stock  of  the  Pacific  railroad,  to  which 
the  United  States  contributed  for  building.  Railroad  Com- 
pany v . Pen  is  ton,  18  Wall.,  29. 

Taxes  do  not  come  within  the  ordinary  definition  of  debts 
for  which  actions  may  be  maintained.  (1  Black.  Com.,  475, 
476;  Pierce  v.  Boston,  3 Met.,  520;  Shaw  v.  Pickett,  26  Vt., 
486 ; Camden  v.  Allen,  2 Dutcher,  398.)  The  collection  of 
taxes  is  a proceeding  in  invitum . The  legal-tender  act  only 
meant  such  debts,  4 public  and  private,”  as  are  founded  upon 
contract,  not  taxes.  (Perry  v.  Washburn,  20  Cal.,  320.)  Lane 
County  v.  Oregon,  7 Wall.,  80. 

The  power  must  not  be  so  exercised  as  to  impair  the  sepa- 
rate existence  of  the  governments.  (Lane  County  v . Oregon, 
7 Wall.,  73.)  The  question  of  power  belongs  to  Congress,  not 
the  courts.  Yeazie  Bank  v.  Fenno,  8 Wall.,  548  ; Lane 
County  v.  Oregon,  affirmed;  Railroad  Co.  v.  Peniston,  18 
Wall.,  29. 


What  are 
the  respect- 
ive powers 
of  the  gov- 
ernment to 
tax? 

p.  94,  n.  71- 
77. 


Are  taxes 
debts? 


What  are 
the  limita- 
tions of  the 
powers  of 
the  States  ? 


The  power  of  taxation  by  a State  is  limited  to  persons, 
property,  or  business  within  its  jurisdiction.  Railroad  v . 
Pennsylvania,  15  Wall.,  319.  Personal  property  may  be 
separated  from  the  person  for  the  purposes  of  taxation,  such 
as  national  bank  stock.  Uniform^  or  equality  is  the  cardi- 
nal principle.  Breman  County  v.  Railroad*Co.,  44  111.,  238. 
Uniformity  in  assessment  being  reached,  the  mode  of  collec- 
tion may  be  varied.  Tappan  v.  Merchants’  National  Bank, 
19  Wall.,  499-505. 

The  States  have  the  power  to  tax  the  shares  of  stockholders 
in  the  national  banks.  National  Bank  v.  Kentucky,  9 Wall., 
356,  361. 


359.  Tax.  Congress  cannot  tax  to  the  destruction  of  how  far 
the  States,  nor  the  States  to  the  hindrance  of  the  National  may  the 
Government.  Railroad  Compan}7"  v.  Peniston,  18  Wall.,  31.  ln®t.I’umen- 


368 


PUBLIC  DEBT,  359,  360. 


[Art.  I,  Sec.  8, 


of  govern- 
ment be 
taxed? 

72. 


Power  to  tax,  with  certain  exceptions,  resides  with  the 
States,  independently  of  the  Federal  Government,  and  that 
power,  when  confined  within  its  true  limits,  may  be  exer- 
cised without  restraint  from  the  federal  authority.  Outside 
of  the  prohibitions,  the  power  of  the  State  to  tax  extends  to 
all  objects  within  the  sovereign  power  of  the  States,  except 
the  means  and  instruments  of  the  Federal  Government. 

Ships,  as  property  merely,  are  not  within  any  inhibition, 
and  are  taxable  by  the  States.  (Nathan  v.  Louisiana,  8 How., 
82 ; Howell  v.  Maryland,  3 Gill.,  14;  Passenger  Tax  Cases, 
7 How.,  402  ; Hays  v.  Pacific  Mail  Steamship  Company,  17 
How.,  598.)  That  power  reaches  all  property,  if  there  be  no 
restriction  in  the  Constitution  and  no  restraining  act  between 
the  Union  and  the  States,  unless  the  thing  taxed  be  denom- 
inated instruments  or  means  of  the  Federal  Government. 
(McCulloch  v.  Maryland,  4 Wheat.,  429 ; Society  for  Savings  v, 
Coite,  6 Wall.,  604;  Brown  v.  Maryland,  12  Wheat.,  448; 
Weston  v.  Charleston,  2 Pet.,  467.)  State  Tonnage  Tax 
Cases,  12  Wall.,  212,  213,  224. 


What  is  the 

public 

debt? 

Note  97. 


78. 


360.  u To  Pay  the  Debts  * * * 

States.” 


of  the  United 


Statement  of  the  public  debt  of  the  United  States  for  the  month 
of  November,  1875. 


Aggregate  of 


debt  bearing  interest 


in  coin — registered, 
$768, '928,700  00 ; coupon,  $925,322,600  00;  total,  $1,694,251,- 
300  00 ; interest  due  and  unpaid,  $7,990,424  88 ; accrued  in- 
terest to  date,  $26,235,479  05. 

Aggregate  of  debt  on  which  interest  has  ceased  since 
maturity — total,  $22,430,870  26 ; interest  due  and  unpaid, 
$539,377  75. 

Aggregate  of  debt  bearing  no  interest — total,  $477,304,- 
084  51 ; interest  due  and  unpaid,  $20,234  84. 

Recapitulation  : Debt  bearing  interest  in  coin — bonds  at  6 
per  cent.,  $1,033,866,550  00;  bonds  at  5 per  cent.,  $660,384,- 
750  00.  Debt  bearing  interest  in  lawful  money — navy  pen- 
sion fund  at  3 per  cent.,  $14,000,000  00.  Debt  on  which 
interest  has  ceased  since  maturity,  $22,430,870  26.  Debt 
bearing  no  interest — old  demand  and  legal-tender  notes, 
$372,541,479  50  ;*  certificates  of  deposit,  $42,610,000  00;  frac- 
tional currency,  $42,356,105  01  ; coin  certificates,  $19,796,- 
500  00 ; unclaimed  interest,  $20,234  84.  Total  debt,  principal 
and  interest,  $2,242,946,771  29. 

By  cash  in  the  Treasury — coin,  $70,404,676  38 ; currency, 
$12,014,962  34 ; special  deposit  held  for  redemption  of  certifi- 
cates of  deposit  as  provided  by  law,  $42,610,000  00.  Total, 
$125,029,638  72. 

Debt,  less  cash  in  the  Treasury  December 

1,  1875.. $2,117,917,132  72 


Cl.  1,2.] 


TO  BORROW  MONEY,  360,  361. 


369 


Debt,  less  cash  in  the  Treasury  November 
1,  1875 2,118,397,211  40 


Decrease  of  debt  during  the  month $480,078  83 

Decrease  of  debt  since  June  30,  1875 $10,771,593  57 


Bonds  issued  to  the  Pacific  Railway  Companies,  interest 
payable  in  lawful  money — principal  outstanding,  $64,623,- 
512  00;  interest  accrued  and  not  yet  paid,  $1,615,587  80. 

By  a decision  of  the  Supreme  Court,  the  United  States 
cannot  charge  its  whole  transportation  account  to  the  Union 
Pacific  railroad,  but  only  half  thereof ; therefore  all  of  these 
bonds  are  properly  chargeable  as  part  of  the  public  debt. 
Union  Pacific  Railroads.  The  United  States,  (October  Term, 
1875,)  1 Otto,  000. 

361.  u TO  BORROW  MONEY  ON  THE  CREDIT  OF  THE 
United  States.”  The  question  presented  for  our  determ- 
ination by  the  record  in  this  case  is  whether  or  not  the  payee 
or  assignee  of  a note  made  before  the  25th  of  February,  1862,  is 
obliged  by  law  to  accept  in  payment  United  States  notes  equal 
in  nominal  amount  to  the  sum  due  according  to  its  terms  when 
tendered  by  the  maker  or  other  party  bound  to  pay  it.  And 
this  requires,  in  the  first  place,  a construction  of  that  clause 
of  the  first  section  of  the  act  of  Congress  passed  on  that  day, 
which  declares  the  United  States  notes,  the  issue  of  which 
was  authorized  by  the  statute,  to  be  a legal  tender  in  pay- 
ment of  debts.  The  entire  clause  is  in  these  words  : “ And 
such  notes  herein  authorized  shall  be  receivable  in  payment 
of  all  taxes,  internal  duties,  excises,  debts,  and  demands  of 
every  kind  due  to  the  United  States,  except  duties  on  im- 
ports and  demands  against  the  United  States  of  every  kind 
whatsoever,  except  for  interest  upon  the  bonds  and  notes, 
which  shall  be  paid  in  coin ; and  shall  also  be  lawful  money 
and  a legal  tender  in  payment  of  all  debts,  public  or  private, 
within  the  United  States,  except  duties  on  imports  and  inter- 
est as  aforesaid.  (12  United  States  Statutes,  345.)  This  clause 
has  already  received  much  consideration  here,  and  this  court 
has  held  that  upon  a sound  construction  neither  taxes  im- 
posed by  a State  Legislature  (Lane  County  v . Oregon,  7 Wall., 
71)  nor  demands  upon  contracts  which  stipulate  in  terms  for 
the  payment  or  delivery  of  coin  or  bullion,  (Bronson  v.  Rodes, 
7 Wall.,  229;  Butler  v.  Hortwitz,  7 Wall.,  258,)  are  included 
by  legislative  intention  under  the  description  of  debts,  pub- 
lic and  private.  We  are  now  to  determine  whether  this  de- 
scription embraces  debts  contracted  before  as  well  as  after 
the  date  of  the  act.  Held,  that  it  did.  and  that  the  act  was 
so  far  unconstitutional.  Hepburn  v.  Griswold,  8 Wall.,  604. 
Overruled,  and  ruled  that  both  as  to  antecedent  and  subse- 
quent debts  the  law  is  constitutional.  The  Legal  Tender 
Cases,  12  Wall.,  529 


Pacific  rail- 
road bonds. 


On  what 
rests  the 
power  to 
issue  treas- 
ury notes? 
And  how 
far  are  they 
constitu- 
tional? 
Page  103, 
notes  82- 


Prece- 

dents. 


Bills  of 
credit,  82, 
154. 

What  are 
hills  of 
credit  and 
what 

amount  of 
treasury 
notes  and 
under  what 
law  ? 

Page  105, 
notes  85-88. 


What  does 
commerce 
include? 


What 
means 
among  the 
several 
States  ? 


What  of  the 

passenger 

tax? 

85. 


THE  POWER,  362-365.  Art.  I,  Sec.  8, 

362.  Bills  of  credit.  Congress  may  constitutionally 
authorize  the  emission  of  bills  of  credit.  The  treasury  notes 
and  national  bank  notes  are  bills  of  credit,  both  being  issued 
on  the  credit  of  the  United  States.  Veazie  Bank  v.  Fen  no, 
8 Wall.,  548,  604.  Bills  of  credit  further  defined.  Moran  v. 
Ditchemondy,  41  Mo.,  431;  Bailey  v.  Milner,  35  Ga.,  330; 
City  National  Bank  v.  Mahan,  21  La.  Ann.,  751.  The  act  of 
17  July,  1861,  (12  Stat.,  259,)  authorized  fifty  million  treasury 
notes,  payable  in  coin  on  demand.  This  sum  was  increased 
to  sixty  million  by  the  act  of  12  February,  1862.  (Ib.,  338.) 
The  act  of  25  February,  1862,  authorized  $150,000,000,  not 
payable  on  demand,  or  at  any  time.  This  amount  was  in- 
creased to  $450,000,000,  of  which  $50,000,000  were  held  in 
reserve  by  the  act  of  11  July,  1862,  and  3 March,  1863.  (12 
Stat.,  532,  710.)  Veazie  Bank  v.  Fenno,  8 Wall.,  537. 

363.  “To  REGULATE  commerce.”  This  includes  com- 
merce carried  on  by  corporations  as  well  as  individuals. 
Exchange  brokers,  money  dealers,  insurance  companies, 
banks,  &c.,  use  the  instrumentalities  of  commerce;  but  they 
are  not  commerce  which  the  States  cannot  tax.  (Nathan 
v . Louisiana,  8 How.,  73.)  Paul  v.  Virginia,  8 Wall.,  182, 
184. 

364.  “ Among  the  several  States.”  Acts  allowing 
railroads  to  carry  on  continuous  lines  and  to  connect  other 
lines,  and  to  build  bridges  over  rivers  connecting  States,  are 
not  intended  to  interfere  with  private  contracts.  Railroad 
Company  v.  Richmond,  19  Wall.,  584. 

This  clause  includes  all  the  means  by  which  intercourse 
for  the  purpose  of  trade  may  be  carried  on,  whether  b}r  the 
free  navigation  of  water  or  the  passage  over  land  through  the 
States,  when  either  becomes  necessary  for  commercial  in- 
tercourse between  the  States.  (Pennsylvania  v.  Wheeling 
Bridge  Company,  18  How.,  421 ; Corfield  v.  Coryell,  4 
Wash.  C.  C.,  378;  Graves  v.  Slaughter,  15  Pet.,  504.)  Nav- 
igation Co.  v.  Dwyer,  29  Tex.,  382.  # 

365.  The  Power.  The  question  of  the  nature  of  the 
power  to  regulate  commerce,  and  how  far  that  power  is  ex- 
clusively vested  in  Congress,  lias  always  been  a difficult  one, 
and  has  seldom  been  construed  in  this  court  with  unanim- 
ity. (Crandall  v.  Nevada,  6 Wall.,  35 ; Hinson  v.  Lott,  8 
Wall.,  152;  The  Passenger  Cases,  7 How.,  283;  Cooley  v. 
The  Portwardens,  12  How.,  299.)  The  right  to  tax  passen- 
gers going  out  of  a State  or  through  a State  denied.  Cran- 
dall v.  Nevada,  6 Wall.,  44. 

Justice  Grier  and  Chief  Justice  Chase  based  their  objec- 
tions on  this  ground.  The  majority  on  the  general  ground 
that  the  citizens  may  be  required  to  attend  the  Government, 
and  have  the  right  to  do  so.  But  whatever  the  reason,  it  was 


Cl.  1,  2.] 


COMMERCE,  365-367. 


371 


held  that  a special  tax  on  railroad  and  stage  companies  for 
every  passenger  carried  out  of  the  State  is  a tax  on  the  pas- 
senger for  the  privilege  of  passing  through  the  State  by  the 
ordinary  modes  of  travel,  and  is  not  a simple  tax  on  the 
business  of  the  companies.  Crandall  v.  Nevada,  6 Wall., 
35.  Such  a law  is  unconstitutional.  Id.  So  a law  of  Lou- 
isiana, which  levied  a tax  of  five  dollars  on  every  passenger, 
is  a regulation  of  commerce,  and  unconstitutional  and  void. 
The  object  of  this  power  was  to  place  that  commerce  be- 
yond interruption  or  embarrassment  arising  from  conflicting 
or  hostile  State  regulations.  Steamship  Company  v.  Port- 
wardens,  6 Wall.,  33. 

366.  Quarantine.  The  States  may  enact  quarantine 
laws,  although,  in  a greater  or  less  degree,  such  laws  affect 
commerce.  If  this  affect  it  injuriously,  Congress  may  con- 
trol the  legislation.  (Gibbons  v.  Ogden,  9 Wheat.,  203.)  The 
means  raised  for  quarantine  must  not  violate  the  Constitu- 
tion. The  State  cannot  lay  a duty  on  tonnage  for  such  a 
purpose.  (1  Stat.  619;  Tonnage  Tax  Cases,  12  Wall.,  204.) 
Hence  sec.  4 of  the  act  of  Texas  of  13  August,  1870,  (Pas- 
chal’s Dig.,  art.  7345,)  which  levied  a tonnage  tax  for  quaran- 
tine purposes  in  Galveston  was  unconstitutional.  Peete  v. 
Morgan,  19  Wall.,  582-584. 

If  the  tax  has  been  illegaly  enacted,  and  the  party  has  paid 
under  protest,  or  with  notice  of  intention  to  sue,  if  no  other 
remedy  has  been  prescribed,  assumpsit  against  the  collecting 
officer  is  the  appropriate  remedy.  (Elliott  v.  Swartwout,  10 
Pet.,  150 ; Bend  v . Hoyt,  13  Pet.,  267.)  Vessels  licensed  for 
waters  navigable  from  the  sea,  of  over  ten  tons  burden,  (1 
Stat.  77,)  are  ships  and  vessels  under  the  act  for  enrolling 
and  licensing  ships  and  vessels.  (1  St.,  305.)  State  Tonnage 
Cases,  12  Wall.,  212. 

367.  Commerce,  as  used  in  the  Constitution,  com- 
prehends navigation  which  extends  to  every  species  of  com- 
mercial intercourse  between  the  United  States  and  foreign 
nations,  and  to  all  commerce  in  the  several  States,  except 
such  as  is  completely  internal,  and  which  does  not  extend  to 
or  affect  the  States.  (Gibbons  v.  Ogden,  9 Wheat.,  193.)  And 
the  power  to  regulate  commerce  includes  navigation  as  well 
as  traffic  in  its  ordinary  signification,  and  embraces  ships  and 
vessels  as  the  instruments  of  intercourse  and  trade,  as  well 
as  the  officers  and  seamen  employed  in  their  navigation. 
Brown  v.  Maryland,  12  Wheat.,  445 ; New  York  v.  Miln,  11 
Pet.,  134;  People  v.  Brooks,  4 Denio,  476;  Steamboat  Com- 
pany v.  Livingston,  3 Cowen,  743.  The  principle  is  illus- 
trated in  numerous  other  cases.  State  Tonnage  Cases,  12 
Wall.,  216-219 ; Steamship  Company  v.  Wardens,  6 Wall.,  34 ; 
Sheffield  v.  Parsons,  3 Stewart  & Porter,  304;  Lott  v.  Mor- 


What  of  the 
power  to 
regulate 
quarantine? 


Define  nav- 
igation as 
commerce. 
86,  89,  90. 


372 


NATURALIZATION,  367-369.  [Art.  1,  Sec.  8, 


Authori- 

ties. 


How  far  are 
the  Indian 
tribes  sub- 
ject to  the 
laws  of  the 
United 
States  ? 

91. 


gan,  41  Ala.,  250;  People  v.  Saratoga  and  Renssalaer  Rail- 
road Company,  15  Wall.,  131 ; Steamboat  Company  v.  Liv- 
ingston, 2 Cow.,  743;  Alexander  v.  Railroad  Company,  3 
Strobh.,  598. 

But  taxes  in  aid  of  the  inspection  laws  of  a State,  under 
special  circumstances,  have  been  upheld  as  necessary  to  sup- 
port the  interests  of  commerce.  (Cooley  v.  Portwardens,  12 
How.,  314.)  And  where  the  act  is  to  raise  revenue  without 
any  corresponding  benefit  to  the  vessels  taxed  or  the  owners, 
it  cannot  be  classed  with  the  pilot  dues  and  port  charges. 
(State  v.  Charleston,  4 Rich,  S.  C.,  286  ; Beuedict  v.  Vander- 
bilt, 1 Rob.  1ST.  Y.,  200.)  Nor  to  a tax  upon  property  in 
vessels.  (Towboat  Company  v.  Bordelon,  7 La.  Ann.,  195.) 
State  Tonnage  Cases,  12  Wall.,  219,  220. 

368.  “And  with  the  Indian  Tribes.”  In  Mackey  v. 
Coxe,  18  How.,  103,  it  was  held  that  the  Cherokee  country 
was  a territory  of  the  United  States,  within  the  meaning  of 
the  acts  of  Congress.  Sec.  107  of  the  Internal  Revenue  act  of 
1868  extends  the  revenue  laws  only  as  to  liquors  and  tobacco 
over  the  Indian  country  in  question.  (The  Cherokee  Tobac- 
co, 11  Wall.,  619.) 

There  is  a long  series  of  decisions  of  this  court  which  hold 
the  same  doctrine.  The  Indian  title  in  all  this  country  is 
but  a usufruct.  As  an  Indian,  he  holds  subject  to  the  will 
of  the  Government,  and  can  only  alienate  when  the  law  al- 
lows it ; and  as  communities,  the3^  can  only  alienate  to  the 
Government.  (Cherokee  Nation  v.  Georgia,  5 Pet.,  1 ; Wor- 
cester v.  Georgia,  6 Pet.,  515;  United  States  v.  Rogers,  4 
How.,  567 ; The  Kansas  Indians,  5 Wall.,  737 ; Johnson  v, 
McIntosh,  8 Wheat.,  574.)  The  Cherokee  Tobacco,  11  Wall., 
619. 

In  the  Cherokee  Nation  v.  Georgia,  5 Pet.,  17,  Chief  Jus- 
tice Marshall  said:  *4The  Indian  Territory  is  admitted  to 
compose  a part  of  the  United  States.  In  all  our  geograph- 
ical treatises,  histories,  and  laws  it  is  so  considered.”  In 
United  States  v.  Rogers,  4 How.,  572,  Chief  Justice  Taney 
said  : u It  is  our  duty  to  expound  and  execute  the  law  as  we 
find  it ; and  we  think  it  too  firmly  and  clearly  established  to 
admit  of  dispute,  that  the  Indian  tribes  residing  within  the 
territorial  limits  of  the  United  States  are  subject  to  their  au- 
thority; and  where  the  country  occupied  by  them  is  not 
within  the  limits  of  one  of  the  States,  Congress  may,  by  law, 
punish  any  offense  committed  there,  no  matter  whether  the 
offender  be  a white  man  or  an  Indian.  The  Cherokee  To- 
bacco, 11  Wall.,  619.  This  last  case  really  rules  that  u In- 
dians not  taxed”  may  be  taxed,  and  that  the  tribes  in  the 
Indian  country  may  be  subjected  to  all  the  laws  of  the  United 
States,  and  this  without  representation. 


What  are  369.  “ TO  ESTABLISH  AN  UNIFORM  RULE  OF  NATURAL- 
the  foreign  ization.”  The  chancellor  immediately  arose,  and  replied 


Cl.  3,  4.]  NATURALIZATION,  369. 

as  follows  : “The  gentleman  who  has  last  spoken  fears  that 
a person  who  has  lived  live  years  in  America,  and  been  nat- 
uralized there,  may  yet,  on  his  return  here,  be  held  to  mili- 
tary duty.  The  literal  observation  of  the  treaty  includes  in 
itself  that  those  whom  we  are  bound  to  acknowledge  as  Ameri- 
can citizens  cannot  be  held  to  military  duty  in  North  Germany. 
That  is  the  main  purpose  of  the  treatj^.  Whosoever  emigrates 
bona  fide,  with  the  purpose  of  residing  permanently  in  Ame- 
rica, shall  meet  no  obstacle  on  our  part  to  his  becoming  an 
American  citizen,  and  his  bona  fides  will  be  assumed  when 
he  shall  have  passed  five  years  in  that  country,  and,  renoun- 
cing his  North  German  nationality,  shall  have  become  an 
American  citizen.  I believe,  therefore,  that  no  room  has  been 
left  open  for  the  anxiety  that  has  been  expressed,  and  I lay 
great  stress  upon  here  placing  the  subject  in  its  true  light.” 

Dr.  Lowe  questioned  the  chancellor  on  this  point  once 
more,  saying:  “To  my  joy,  I think  I ma3r  understand  the 
Chancellor  to  say  that  no  prosecution  for  unauthorized  emi- 
gration can  take  place,  even  if  the  emigrant  shall  have  ceased 
to  be  an  American?”  Count  Bismarck  replied,  “I  here- 
with confirm  the  declaration  which  the  gentleman  raises 
and  desires  ; I might  almost  assert  that  we  will  treat  the  five 
years’  absence  in  America,  when  connected  with  naturaliza- 
tion, as  a fulfillment  of  the  military  duty  in  the  North  Ger- 
man Confederacy.”  Bancroft’s  dispatch  on  the  treaty  with 
North  Germany,  3 April,  1868. 

The  naturalization  laws  have  been  so  amended,  by  act  of 
14  July,  1870,  (16  St.,  254 ; Paschal’s  Digest,  arts.  7163-7167,) 
as  to  guard  against  fraud  and  perjury  in  procuring  and  using 
naturalization  papers.  The  whole  naturalization  law  is  now 
found  in  the  Revised  Statutes,  secs.  2165-2174,  and  the  pun- 
ishment for  frauds  upon  the  law  is  in  secs.  5395-5429.  All 
naturalized  citizens  are  entitled  to  protection  in  foreign  coun- 
tries, and  to  be  released  when  imprisoned  there.  Secs.  2000, 
2001. 

By  the  reciprocity  treaty  of  20  Sept.,  1870,  between  the 
United  States  and  Austria,  citizens  of  the  United  States  who 
reside  five  years  in  the  Austro-Hungarian  empire,  and  are 
naturalized  there,  become  citizens  of  that  country;  and  re- 
ciprocally the  same  rule  extends  to  citizens  of  the  Austro- 
Hungarian  monarchy  who  reside  five  years  in  the  United 
States,  and  are  naturalized  here,  become  citizens  of  the  United 
States ; but  each  may  resume  their  naturalization  and  become 
citizens  without  respect  to  time.  Public  Treaties,  p.  34.  A like 
treaty  was  concluded  19  July,  1868,  with  Baden.  And  with 
Bavaria,  26  March,  1868.  Id.,  44,  45.  Explained.  Id.,  46. 
With  Belgium,  16  Nov.,  1868.  Id.,  61,  62.  With  Denmark,  20 
July,  1872.  With  Great  Britain,  13  May,  1870.  Id.,  349.  With 
the  Grand  Duchj^  of  Hesse,  1 Aug.,  1868.  Id.,  424.  With 
Mexico,  10  July,  1848.  Id.,  512.  With  the  North  German 
Union,  22  Feb.,  1868.  Id.,  575.  With  Sweden  and  Norway, 


373 


treaties  in 
relation  to 
naturali- 
zation and 
expatria- 
tion? 

93. 


What  of 
our  recip- 
rocity 
treaties  ? 


374 


to  coin,  369,  370. 


* 


[Art.  I,  Sec.  8, 


Recipro- 

city. 


What 

means  “to 
coin?” 


Are  treas- 
ury notes 
legal  tend- 
ers? 


What  of  the 
coinage 
acts  ? 


What  coins 
are  legal 
tenders? 


26  May,  1869.  Id.,  744,  745.  With  Wurtemberg,  27  July, 
1868.  Id.,  811. 

It  results  from  these  treaties  that  citizens  of  the  United 
States  may  expatriate  themselves  by  residing  five  years  in 
any  of  the  foregoing  countries,  and  being  naturalized  in  ac- 
cordance with  its  laws ; and  such  persons  may  regain  their 
citizenship  by  returning  to  the  United  States  and  publicly 
renouncing  their  foreign  allegiance.  Naturalization  does  not 
interfere  with  extradition  for  crime. 

370.  u To  coin.”  To  coin  is  simply  to  give  the  stamp  of 
the  supreme  governmental  power  to  any  subject  to  give  it  all 
the  attributes  of  money.  Shaw  v . Trunsler,  30  Tex.,  395. 

In  Bronson  v.  Rodes,  7 Wall.,  229,  the  suit  was  upon  a con- 
tract dated  in  December,  1851,  and  payable  in  “gold  and 
silver  coin,  current  money  of  the  United  States.”  That  of 
Butler  v . Horwitz,  7 Wall.,  258,  was  held  to  be  of  the  same 
character,  although  the  contract  was  dated  in  1791,  and  was 
“for  a yearly  rent  or  sum  of  <£15,  current  money  of  Mary- 
land, payable  in  English  golden  guineas,  weighing  five  pen- 
nyweights and  six  grains,”  &c.  The  case  of  Lane  County 
v.  Oregon,  7 Wall.,  71,  was  held  not  to  involve  the  cpiestion. 
In  Hepburn  v.  Griswold,  8 Wall.,  604,- the  note  was  dated  20 
June.  1860,  and  matured  20  June,  1862,  and  was  payable  in 
“dollars.”  So  that,  in  point  of  fact,  in  all  these  cases  the 
contracts  were  made  before  the  passage  of  the  first  legal-ten- 
der act.  (12  U.  S.  St.  at  Large,  345,  532,  709 ; 2 Brightly’s 
Dig.,  167,  168.) 

And,  finally,  it  was  held  that  the  treasury  notes  were  legal 
tenders  (where  it  is  not  otherwise  expressed)  in  payment  of 
contracts,  both  anterior  and  subsequent  to  the  passage  of  the 
act.  Legal  Tender  Cases,  12  Wall.,  552  ; and  see  Paschal’s 
Digest  of  Decisions,  §§  16963-16987. 

The  several  coinage  acts  of  Congress  make  the  gold  and  sil- 
ver coins  of  the  United  States  a legal  tender  in  all  pajnnents, 
according  to  their  nominal  or  declared  values.  Acts  of  18 
Jan.  1837  ; 3 March,  1849  ; 25  Feb.  1862.  This  latter  act  de- 
clares that  the  notes  of  the  United  States  shall  be  lawful 
money,  and  a legal  tender  in  payment  of  debts;  and  this  act 
has  been  sustained  in  the  Legal  Tender  Cases,  12  Wall.,  529, 
as  valid  and  constitutional.  So  that  we  have  two  kinds  of 
money,  essentially  different  in  their  nature,  but  equally  law- 
ful. And  the  distinction  between  the  two  kinds  of  money  is 
recognized  by  several  acts  of  Congress.  (12  U.  S.  St.  at  Large, 
370;  Id.,  719,  §4;  14  Id.,  147;  1 Id.,  250,  §20;  Cheung  Kee 
v.  The  United  States,  3 Wall.,  320.)  Treblecock  r.  Wilson,  12 
Wall.,  696-698. 

A number  of  foreign  coins  have  been  declared  legal  tenders 
by  sundry  acts  of  Congress.  1 U.  S.  St.  at  Large,  301,  § 2; 
1 Brightly’s  Dig.,  153,  § 20;  2 IT.  S.  St.  at  Large,  374;  1 
Brightly’s  Dig.,1  154,  § 26;  act  25  June,  1834,  4 if.  S.  St.  at 


Cl.  5,  7.]  POST  OFFICES  AND  POST  ROADS,  372. 


375 


Large,  G81,  § 1;  1 Brightly’s  Dig.,  155,  § 29;  act  25  June, 
1834,  4 U.  S.  St.  at  Large,  700,  § 1;  1 Brightly’s  Dig.,  155, 
§ 31 ; act  3 March,  1843,  531,  700,  § 1 ; 1 Brightly ’s  Dig.,  155, 
§ 34.  These  acts  respectively  used  the  terms  “ legal  tender,” 
“ current  coin,”  “legal  value,  and  pass  current  in  the  United 
States  by  tail  for  the  payment  of  all  debts  and  demands,” 
&c.  Finally,  after  we  had  got  native  gold  enough  for  our 
purposes,  all  the  laws  making  foreign  coins  legal  tenders  were 
repealed  by  section  3 of  the  act  of  21  Feb.,  1857.  11  U.  S. 

St.  at  Large,  163,  § 3;  1 Brightly’s  Dig.,  156,  § 41.  See  an 
accurate  history  of  these  several  acts  in  the  Metropolitan  Bank 
v.  Van  Dyck,  27  N.  Y.,  424,  426,  and  in  the  brief  and  opin- 
ions in  the  legal  tender  cases. 

371.  “ Money.  ’ ’ The  materials  are  gold,  silver,  and  paper. 
Wharton’s  Law  Lexicon,  Money , 602.  Bank  of  England 
notes  were  first  made  a legal  tender  by  the  6th  section  of  the 
act  of  3 and  4 William  IY,  ch.  9.  Id. 

For  a very  critical  definition,  see  Coke  on  Littleton,  lib.  3, 
ch.  5,  secs.  336,  207a. 

English  money  was  coined  by  the  king’s  authority,  and 
foreign  money  legalized  by  proclamation.  Called  coin,  be- 
cause the  French  coin  had  corners.  Some  say  that  coine  did - 
tur  a ferinos , id  est  communis  quod  sit  omnibus  rebus  communis . 
Moneta  dicitur  a monendo , to  use  it  cautiously,  &c.  Pecunia 
dicitur  d pecu  (beasts)  omnes  enim  veterum  dimtia  in  animali- 
bus  consistent.  In  HomeFs  time  there  was  no  exchange  but 
cattle.  Coke  Littleton,  207a. 

Coin  differs  from  money,  as  the  species  from  the  genus. 

Money  is  any  matter,  whether  metal,  paper,  beads,  shells, 
&c.,  which  have  currency  as  a medium  in  commerce.  Coin 
is  a particular  species,  always  made  of  metal,  and  struck  ac- 
cording to  a. certain  process  called  coining.  Wharton’s  Law 
Lexicon,  Coin,  180. 

The  coinage  of  money  is  regulated  by  the  acts  about  the 
United  States  mints.  Revised  Statutes,  3528-3600  and  5460. 
For  coinage  and  weights  and  measures  see  Rev.  Stat.  secs. 
3495-3570. 

372.  “Post  offices  and  post  roads.”  The  history  of 
post  offices  and  post  roads  is  given  more  fully  in  Broome  and 
Hadley’s  Commentaries,  chap.  8,  p.  383,  (Wait’s  edition, 
p.  247,)  under  the  title  “The  King’s  Royal  Revenues,”  than 
in  Blackstone’s  Commentaries.  The  first  master  of  the  posts 
is  traced  to  1516,  when  Sir  Brian  Tuke  was  appointed;  but 
the  practice  of  sending  letters  by  post  on  royal  business  was 
much  earlier.  From  Mr.  W ait’s  notes  we  copy  the  following 
synopsis  of  decisions:  “The  Postmaster  General  is  but  a 
mere  agent  of  the  United  States  as  to  all  official  acts  and 
contracts.  Locke  v.  Postmaster  General,  3 Mason’s  C.  C., 
446.  He  has  the  authority  to  establish  post  offices,  whether 

2.9 


Define 

money? 


83. 


Give  the 
history  of 
post  offices 
and  post 
roads. 


[Art.  I,  Sec.  8, 


376  POSTAL  LAWS,  372. 

Mails.  the  commissions  are  more  or  less  than  $1,000.  Ware  v. 

United  States,  4 Wall.,  617.  He  may  require  and  take  bonds 
from  postmasters.  Postmaster  General  v.  Early,  12  Wheat., 
136;  Postmaster  General  v.  Rice,  Gilp.,  554;  Attorney  Gen- 
eral v.  Reeder,  4 Wash.  C.  C.,  468.  If  a postmaster  unlaw- 
fully detains  mail  matter  from  the  individual  to  whom  it  is 
addressed,  it  is  a conversion,  for  which  an  action  of  trover 
may  be  maintained  against  him.  Teal  v . Felton,  12  How., 
(U.  S.,)284,  affirming  S.  C.,  1 K.  Y.,  (1  Comst.,)237 ; 3 Barb., 
512.  And  the  action  will  lie  in  the  State  courts.  Ib.  It  is 
the  duty  of  the  postmaster  to  deliver  letters  deposited  at  the 
same  office.  Kevins  v . Bank  of  Lansingburg,  10  Mich.,  547 ; 
Bank  of  Columbia  v.  Lawrence,  1 Pet.,  578. 
what  ac-  A civil  action  will  lie  in  a State  court  against  a postmaster 
tion  will  for  negligence,  whereby  a letter  containing  money  was  stolen 
lie  against  from  his  office.  Coleman  v.  Frazier,  4 Rich.,  (S.  C.,)  146; 
te°rs?  ' Bolan  Williamson,  1 Brev.,  181 ; S.  C.,  2 Bay.  551.  And 
the  postmaster  is  liable  for  the  negligent  acts  of  his  assistant 
in  the  discharge  of  the  duties  of  the  office.  Ib. ; see  Teal  v. 
Felton,  supra.  But  see  Schroyer  v.  Lynch,  8 Watts.,  453, 
as  to  the  purloining  of  a letter  by  a deputy.”  It  will  also  lie 
against  a carrier  who  carelessly  lost  a mail  pouch  with  money. 
Sawyer  v.  Corse,  11  Gratton,  1. 

A postmaster  is  liable  for  the  acts  of  one  whom  he  permits 
to  have  the  care  and  custody  of  the  mail  in  his  office,  not 
having  been  sworn  according  to  law.  Bishop  v.  Williamson, 
11  Me.,  (2  Fairf.,)  495.  And  a deputy  postmaster  is  liable  in 
an  action  bjr  the  party  sustaining  a loss  by  his  negligence. 
Maxwell  v . Mcllvay,  2 Bibb.,  211. 

where  may  The  United  States  may  sue  a postmaster  before  a justice 
the  United  of  the  peace,  if  the  amount  claimed  be  within  his  jurisdiction. 
poastmaSsUea  McNormell  v.  United  States,  6 Eng.,  (Ark.,)  148.  But  no 
ter?  action  lies  against  a postmaster  upon  an  unaccepted  draft 

upon  him  from  the  Post  Office  Department  in  favor  of  the 
holder.  Goodwin  v.  Hazzard,  1 Carter,  (Ind.,)  514. 

Kor  will  an  action  lie  against  him  for  refusing  to  give  a 
newspaper  the  publishing  of  advertisement  as  to  letters  re- 
maining in  post  offices,  as  required  by  act  of  Congress,  be- 
cause a private  action  will  not  lie  to  enforce  a public  duty, 
unless  it  is  given  by  statute.  Fosters  v.  McKibben,  14  Penn. 
St.,  168;  Strong  r.  Campbell,  11  Barb.,  135. 
where  are  The  general  laws  in  relation  to  post  offices  and  post  roads 
the  general  are  reproduced  in  the  Revised  Statutes,  sections  388-414, 3634- 
laws  ? 3644,  3774^  3797^  38Q4^  3329-4057,  5266,  5267.  And  the  laws 

regulating  postmasters  are  in  sections  52,  53,  72,  294,  889, 
890,  952,  3639,  3830-4961.  So  vast  an  amount  of  u necessary 
and  proper”  legislation  shows  how  much  has  been  implied 
from  the  three  words  “to  establish  post  offices  and  post 
roads.”  A revision  of  the  laws  defining  all  the  post  offices 
and  post  roads  was  made  in  1873,  and  is  bound  up  with  the 
foreign  treaties  and  the  laws  respecting  the  District  of  Col- 
umbia. 


Cl.  7-9.] 


INFERIOR  TRIBUNALS,  372-374.* 


377 


On  22d  June,  1874,  Congress  passed  an  act,  which  covers 
343  large  pages,  revising  and  defining  all  the  post  offices  and 
post  roads  in  the  United  States.  Revised  Statutes,  relating  to 
Post  Offices  and  Post  Roads. 

The  statute  of  22d  September,  1789,  provided  for  the  ap- 
pointment of  a Postmaster  General.  (1  St.,  70.)  The  acts 
showed  that  it  was  merely  the  continuation  of  the  post  office 
system  under  the  Continental  Congress.  On  the  4th  August, 
1790,  a supplementary  act  was  passed  to  continue  this  act  in 
force  until  the  end  of  the  next  session  of  Congress.  (1  St.,  178.) 
And  on  the  3d  March,  1791,  it  was  again  continued  in  force 
until  the  end  of  the  next  session  of  Congress.  (1  St.,  218.) 
In  act  of  details  of  22d  February,  1792,  the  Continental  laws 
were  again  continued  in  force  until  the  first  of  June  of  that 
year.  (1  St.,  239.)  In  general  terms  these  laws  were  con- 
tinued until  the  first  of  June,  1794.  The  provisional  post-office 
arrangement  of  the  confederation  remained  in  force  until  1 
June,  1794,  when  the  act  of  8 May  previous  went  into  opera- 
tion, 1 June  being  Sunday.  Timothy  Pickering  was  appointed 
and  confirmed  and  served  one  day.  This  is  the  only  instance 
of  such  an  appointment  during  the  sessions  of  the  Senate. 
1 Trial  of  the  President,  368. 

3K3.  “To  PROMOTE  the;  progress  of  science  and 

THE  USEFUL.  ARTS,  BY  SECURING  FOR  LIMITED  TIMES  TO 
AUTHORS  AND  INVENTORS  THE  EXCLUSIVE  RIGHT  TO 
THEIR  RESPECTIVE  WRITINGS  AND  DISCOVERIES.”  The 
right  is  exclusive.  Hence  the  forced  sale  of  stereotyped 
plates  does  not  carry  the  author’s  exclusive  right  to  print 
and  sell  the  book.  Stevens  v.  Cady,  14  How.,  528  ; Stevens 
v.  Gladding,  17  How.,  448. 

And  the  right  to  sell  the  books  while  they  are  the  property 
of  the  author  is  denied.  Cooper  v.  Gunn,  4 B.  Monr.,  596. 

But  Justice  Nelson  believed  that  by  an  equity  proceeding 
(a  creditor’s  bill)  the  author  might  be  compelled  to  assign 
his  copyright.  Stevens  v.  Gladding,  14  How.,  528. 

The  voluntary  sale  of  a patented  machine  does  carry  along 
the  inventor’s  right  to  use  that  machine,  whether  the  sale 
be  voluntary  or  involuntary.  (Hesse  v.  Stevenson,  3 Boss.  & 
Pull.,  565;  Blosam  v.  Elsee,  5 Barn.  & Cress.,  169;  Hindm. 
on  Patents,  240,  327 ; Swain  v.  Guild,  2 Galb.,  485.)  Wood- 
worth  v . Curtis,  2 Wood.  & Min.,  530. 

The  present  patent  laws,  with  references  to  the  citations, 
will  be  found  in  the  Revised  Statutes.  They  are  also  printed 
and  circulated  in  pamphlets  by  the  department. 

3?4.  “To  CONSTITUTE  TRIBUNALS  INFERIOR  TO  THE 
Supreme  Court.”  The  tribunals  which  have  been  consti- 
tuted under  this  head  are  the  District  and  Circuit  Courts, 
over  which  preside  district  and  circuit  judges,  with  whom  are 
frequently  associated  the  Associate  Justices  of  the  Supreme 
Court  of  the  United  States.  The  respective  jurisdictions  of 
these  courts  are  defined  in  sections  530-672  of  the  Revised 


What  are 
the  acts 
about  post 
offices  and 
post  roads? 


What  are 
the  exemp- 
tions of  au- 
thors from 
forced 
sales? 


What  infe- 
rior tribun- 
als have 
been  es- 
tablished ? 
191, 195. 


378  INCIDENT  OF  THE  POWER,  375-377.  [Art.  I,  Sec.  8, 


Tribunals.  Statutes.  For  some  purposes  the  courts  of  the  Territories 
Jgj'  and  District  of  Columbia  and  the  Court  of  Claims  may  be 
considered  inferior  courts.  But  it  has  been  denied  that  their 
judges  hold  during  good  behavior.  And  their  whole  organ- 
izations are  subject  to  repeal.  But  is  not  this  so  as  to  the 
Supreme  and  Circuit  Courts? 

What  effect  373.  State  Rulings.  The  ruling  of  the  Supreme  Court 
sfate  rule-  a State  uPon  its  own  constitution  is  conclusive  upon  the 
ings?  Supreme  Court  of  the  United  States.  Randall  v.  Brigham, 
7 Wall.,  541 ; Provident  Institution v. Massachusetts,  6 Wall., 
630 ; Gut  v.  The  State,  9 Wall.,  37. 

But  if  the  State  decisions  violate  contracts,  or  take  away  all 
remedy  for  the  enforcement  of  a judgment  or  contract,  so  that 
none  is  left,  or  affect  the  process  of  the  federal  courts,  the 
State  decisions  will  not  be  followed.  Butz  v.  City  of  Musca- 
tine, 8 Wall.,  575. 

The  cases  of  Warren  v.  Leffingwell,  2 Black,  599 ; Gelficke, 
v.  Dubuque,  1 Wall.,  175 ; Lee  County  v.  Rogers,  7 Wall., 
181,  are  declared,  in  the  dissentient  opinion  of  Mr.  Justice 
Miller,  to  be  impaired  by  this  last  decision.  Butz  v.  City  of 
Muscatine,  8 Wall.,  585. 


Page  127.  376.  “To  declare  War.”  That  the  late  rebellion. 

Notes  117-  when  it  assumed  the  character  of  civil  war,  was  attended  by 
121‘  the  general  incidents  of  a regular  war,  has  been  so  frequently 

declared  here,  that  nothing  further  need  be  said  on  that  point. 
The  Grapeshot,  9 Wall.,  132.  And  that  intercourse  between 
the  belligerents  Ty  y c ^^rb^dden  \t o tc o o v United 

8 Wall.,  166 ; Ouachita  Cotton  Case,  6 Wall.,  521.  It  followed 
as  a result  of  the  war.  United  States  v.  Lane,  8 Wall.,  195. 


118.  377.  Incident  of  the  power.  In  Leitsendorfer  v. 

Webb,  20  How.,  176,  the  authority  of  the  officer  holding  pos- 
session in  Mexico  for  the  United  States  to  establish  a pro- 
visional government  was  sustained,  and  the  reasons  upon 
which  that  judgment  was  supported  apply  directly  to  the 
establishment  of  a provisional  government  in  Louisiana.  The 
cases  of  Jecker  v.  Montgomery,  13  How.,  498,  and  18  IIow., 
110;  Texas  v.  White,  7 Wall.,  700,  may  be  cited  in  illustra- 
tion of  the  principle  applicable  to  military  occupation.  The 
Grapeshot,  9 Wall.,  133.  [See  the  cases  collected,  Paschal’s 
Digest  of  Decisions,  §§  20743-20752.] 

The  civil  war  between  the  United  States  and  Confederate 
States  began,  at  least,  for  some  purposes,  and  in  some  locali- 
ties, as  early  as  13th  April,  1861.  (The  Prize  Cases,  2 Black, 
636.)  The  court  held  that  war  commenced  with  the  Presi- 
dent’s proclamation  of  blockade  of  27th  April,  1861.  (12 

Stat.,  257 ; and  see  proclamation  15th,  19th,  27th  April,  1861, 
12  Stat.,  secs..  1258-1260.)  But  the  treaty  of  Washington 
with  Great  Britain  fixes  the  date  at  13th  April,  1861.  (17 

Stat.,  1867,  sec.  12 ; Diplomatic  Correspondence  of  April  and 


INCIDENT  OF  THE  POWER,  377. 


Cl.  1,2.] 


July,  1865,  secs.  362-423.)  And,  by  proclamation  of  13th 
July,  1861,  eleven  States,  with  unimportant  exceptions,  were 
declared  to  be  in  rebellion . (12  Stat..  1260-1266 ; The  Venice, 
2 Wall.,  277.)  The  war  was  continued  in  those  States  until 
the  President’s  proclamations  of  1866.  (McPherson’s  His- 
tory of  Reconstruction,  194;  13  Stat.,  763;  The  Protector,  12 
Wall.,  702;  United  States  v.  Anderson,  9 Wall.,  56;  Gross- 
meyerw.  United  States,  9 Wall.,  72.)  Lawrence’s  Report,  43d 
Congress,  Mo.  262.)  But  while  the  war  in  Texas, did  not,  for 
some  purposes,  close  until  20  August,  1866,  the  people  of 
that  State,  and  of  Illinois  and  California,  were  not  public 
enemies.  The  existence  of  war  closes  the  courts  of  each  bel- 
ligerent to  the  citizens  of  the  other,  but  it  does  not  prevent 
the  citizens  of  one  belligerent  from  taking  proceedings  for 
the  protection  of  their  own  property  in  their  own  courts 
against  the  citizens  of  the  other,  whenever  the  latter  can  be 
reached  by  process.  In  The  Protector,  12  'Wall.,  700,  it  was 
held  that  the  war  began  at  the  date  of  the  President’s  procla- 
mation of  blockade,  and  that  the  time  between  that  date  and 
the  date  of  the  President’s  proclamations  of  peace,  or  of  its 
close,  must  be  deducted  from  the  statutes  of  limitation.  This 
is  the  extent  of  the  decisions  of  this  court.  Brown  v.  Hiatts, 
15  Wall.,  184 ; Adger  v.  Alston,  Id.,  560.  Masterson  v.  How- 
ard, 18  Wall.,  105,  106. 

Property  situated  in  St.  Louis,  belonging  to  a citizen  of  Vir- 
ginia, was  lawfully  sold  by  a trustee  to  pay  the  debt  of  a 
loyal  citizen  of  Missouri.  The  cases  of  Hanger  v.  Abbott,  6 
Wall.,  532,  and  Dean  v.  Melson,  10  Wall.,  158,  are  not  against 
this  principle. 

An  alien  enemy  may  be  sued,  though  he  cannot  sue  in  our 
courts.  When  sued  he  may  appear  in  defense.  McVeigh  v. 
The  United  States,  11  Wall.,  259.  A state  of  war  may  be 
continued  beyond  the  general  suspension  of  hostilities  in  its 
theatre — “ non  flagrante  hello  sed  non  dam  cessante  hello.” 
(Mrs.  Alexander’s  Cotton  Case,  2 Wall.,  419 ; Cross  v.  Har- 
rison, 16  How.,  164;  Whiting’s  War  Powers,  58;  Lieber,  442, 
sec.  1142 ; Elkinston  v.  Bedruchund,  1 Knapp,  300.)  Law- 
rence Report,  3.  War,  either  foreign  or  civil,  may  exist 
where  no  battle  has  been  or  is  being  fought.  (Ex-parte  Mil- 
ligan, 4 Wall.,  127-142;  Luther  v.  Borden,  7 How.,  1;  Howard 
v.  The  United  States,  1st  Court  of  Claims  R.,  41 ; S.  C.,  2 Id., 
551.)  Lawrence  Report,  4.  When  war  exists,  either  bellig- 
erent may  modify  or  limit  its  operation  as  to  persons  or  terri- 
tory of  the  other,  but  in  the  absence  of  such  modification  or 
restriction,  judicial  tribunals  cannot  discriminate  in  its  appli- 
cation. The  Venice,  2 Wall.,  274. 

Iu  Ex-parte  Milligan,  4 Wallace,  137,  Chief  Justice  Chase 
said  : fc4The  Constitution  itself  provides  foi*  military  govern- 
ment as  well  as  civil  government.  And  we  do  not  understand 
it  to  be  claimed  that  the  civil  safeguards  of  the  Constitutioi 


379 


War  power. 


How  is  this 
explained? 


Can  an 
alien  ene- 
my be 
sued? 


380 


LAWS  OF  NATIONS,  378 


[Art.  I,  Sec.  8, 


Military 

govern- 

ment. 


How  does 
the  law  of 
nations  af- 
fect war? 


The  edit- 
or’s dis- 
sent? 


How  as  to 
property  in 
the  insur- 
gent States? 


have  application  in  cases  within  the  proper  sphere  of  the  for - 
mer .”  Page  137.  (See  2 Opinions,  297.) 

Whiting’s  War  Powers,  27,  51. 

378.  By  the  laws  of  nations.  From  this  and  other 
authorities  Mr.  Lawrence  seemed  to  deduce  that,  as  the  laws 
of  nations  are  obliged  to  be  recognized,  and  these  carry 
along  the  laws  of  war,  the  citizens  in  the  States  in  rebellion 
have  no  right  to  claim  the  protection  of  the  Vth  amendment 
of  the  Constitution.  His  language  is:  4 4 But  where  war  is 
actually  flagrant,  or  a state  of  war  and  the  exercise  of  military 
authority  exist,  the  laws  of  war  prevail ; and,  so  far  as  clearly 
necessary  for  all  purposes  of  war,  they  are  so  far  exclusive 
that  no  antagonistic  law  or  exercise  of  jurisdiction  can  be 
allowed.” 

In  Ex-parte  Milligan,  4 Wallace,  127,  the  test  applied  as  to 
whether  the  laws  of  war  were  in  force  quoad  rights  of  per- 
son, was  whether  the  civil  courts  were  open,  and  it  was  held 
that  the  court  was  the  judge  of  this.  [And  see  Coke  Com. 
Lit.,  lib.  3,  ch.  6,  sec.  412,  p.  [249  6.] 

Lawrence’s  Wheaton,  526,  (2  Am.  ed.)  Lawrence  says  this 
is  the  English  rule,  and  applies  to  the  seizure  of  real  estate, 
44  so  as  the  courts  were  shut  up,  et  silent  inter  leges  arma .” 
Grant  v.  U.  S.,  1 N.  & H.  Court  Claims,  41 : 

But  the  mere  fact , that  under  the  protection  of  military 
power,  civil  courts  aided  the  administration  of  justice,  could 
not  exclude  rightful  military  authority.  The  civil  courts  were 
open  more  or  less  in  the  District  of  Columbia  and  some  of 
the  States  during  a portion  of  the  period  of  the  rebellion. 

This  was  largely  the  doctrine  and  practice  of  the  confed- 
erate officers  in  regard  to  the  rights  of  their  own  citizens. 
But  the  editor  could  never  give  it  countenance.  He  could 
never  comprehend  why  those  not  connected  with  the  army 
or  navy  or  militia  when  in  actual  service,  were  not  entitled 
to  all  the  protection  guarantied  by  the  bills  of  rights  and 
the  constitutional  guaranties  to  which  they  are  entitled  in 
time  of  peace.  The  military  laws  are  for  the  government  of 
the  military  establishment  only. 

In  United  States  v.  Klein,  13  Wall.,  p.  128,  the  court  said  : 
44  It  may  be  said,  in  general  terms,  that  property  in  the  in- 
surgent States  may  be  distributed  into  four  classes  : [1.]  That 
which  belonged  to  the  hostile  organizations,  or  was  employed 
in  actual  hostilities  on  land ; [2.]  That  which  at  sea  became 
lawful  subject  of  capture  and  prize;  [3.]  That  which  be- 
came the  subject  of  confiscation ; [4.]  A peculiar  description, 
known  only  in  the  recent  war,  called  captured  and  abandoned 
property. 

441.  The  first  of  these  descriptions  of  property,  like  property 
of  other  like  kind  in  ordinary  international  wars,  became, 
wherever  taken,  ipso  facto  the  property  of  the  United  States. 
Halleck’s  Int.  Law. 


Cl.  11,  12.] 


MILITARY  FORCES,  378-381. 


381 


44  2.  The  second  of  these  descriptions  comprehends  ships  and  Military 
vessels,  with  their  cargoes,  belonging  to  the  insurgents,  or  P°wer. 
employed  in  aid  of  them;  but  property  in  these  was  not 
changed  by  capture  alone,  but  by  regular  judicial  proceeding 
and  sentence. 

“Accordingly  it  was  provided,  in  the  abandoned  and  cap- 
tured property  act  of  March  12,  1833,  (12  St.,  p.  820,)  that  the 
property  to  be  collected  under  it  4 shall  not  include  any  kind 
or  description  used,  or  intended  to  be  used,  for  carrying  on 
war  against  the  United  States,  such  as  arms,  ordnance,  ships, 
steamboats  and  their  furniture,  forage,  military  supplies,  or 
munitions  of  war.’  ” 

The  rules  in  respect  to  captured  and  abandoned  property, 
and  the  trust  in  favor  of  the  owners,  are  fully  given  in  Klein 
v.  The  United  States ; in  Paddleford’s  case,  9 Wall.,  531 ; in 
Carlisle  v.  The  United  States,  16  Wall.,  147 ; in  Planters’ 

Bank  v.  Union  Bank,  16  Wall.,  495. 

379.  “To  RAISE  AND  SUPPORT  ARMIES”  and  “PRO-  What  of  the 
VIDE  FOR  THE  GOVERNMENT  OF  THE  LAND  AND  NAVAL  power  over 

forces.”  The  control  of  the  United  States  government  ar^2-i26. 
over  these  subjects  is  plenary  and  exclusive.  It  can  determ- 
ine, without  question  from  any  State  authority,  how  the 
armies  shall  be  raised,  whether  by  voluntary  enlistment  or 
forced  draft;  the  ages  of  soldiers;  the  period  of  service, what 
it  shall  be,  and  the  compensation.  It  can  provide  the  rules 
of  government,  define  offenses  and  punishments.  With 
none  of  these  powers  can  the  States  interfere.  They  cannot 
by  habeas  corpus  release  those  thus  connected  with  the 
army.  Such  a remedy,  where  the  imprisonment  is  under 
authority  or  color  of  authority  by  the  United  States,  belongs 
to  their  courts.  (In  the  matter  of  Severy,  4 Clifford,  000 ; 

In  the  matter  of  Keeler,  Hempstead,  306;  Ableman  v.  Booth, 

21  How.,  506.)  Tarble’s  case,  13  Wall.,  408-411. 

3S0.  44  But  NO  APPROPRIATION  TO  THAT  USE  SHALL  Howare 
BE  FOR  A LONGER  PERIOD  THAN  TWO  YEARS.”  So  that  appropria- 
it  is  in  the  power  of  the  succeeding  House  of  Representatives  mmted? 
to  withhold  the  appropriation  for  the  Army  support,  and 
thus  disband  it,  if  the  President  has  used  or  designs  to  use 
it  for  improper  purposes.  Ex  parte  Merriman,  Taney,  C. 

C.  Dec.,  258,  259. 

381.  6 4 TO  MAKE  RULES  FOR  THE  GOVERNMENT  AND  State  the 
REGULATION  OF  THE  LAND  AND JSAVAL  FORCES.”  It  results  rude  as  to 
that  Congress  may  impose  such  restrictions  and  limitations  pJtkmSr.egu 
upon  the  appointing  power  as  it  deems  proper,  in  regard  to 
promotions  or  appointments  to  fill  any  and  all  vacancies,  of 
whatever  kind,  occurring  in  the  army;  but  such  regulations 
must  not  restrict  the  appointing  power.  The  many  statutes 
restricting  promotions  were  cited  and  sustained.  14  Op. , 172. 


382 


CAPTURES  DEFINED,  382-384.  [Art.  I,  Sec.  8, 


By  whom 
officered  ? 


Define  cap- 
tures. » 


Define  a de 
facto  gov- 
ernment. 


382.  “Reserving  to  the  States  respectively 
the  appointment  of  the  officers.”  This  is  a security 
against  the  military  power  for  purposes  dangerous  to  the 
liberties  of  the  people  or  the  rights  of  the  States.  Ex  parte 
Merriman,  Taney,  C.  C.Dec.,  258,  259. 

383.  “ Captures  on  land  and  water.”  A capture 
is  a taking  by  the  enemy  of  a vessel  or  cargo  as  prize  in  time 
of  open  war,  or,  by  way  of  reprisal,  with  the  intent  to  deprive 
the  owner  of  it.  And  it  may  now  embrace  the  taking  of  a 
neutral  ship  and  cargo  by  a belligerent  jure  belli;  also,  the 
taking  forcibly  by  a friendly  power,  in  time  of  peace,  and 
even  by  the  government  itself  to  which  the  assured  belongs. 
Phillips  on  Insur.,  §§  1108, 1109;  Arnauld  on  same,  808,  814; 
2 Marshall  on  same.  495,  496,  507 ; Powell  v.  Hyde,  5 Ellis  & 
Blackb.,  607 ; Mauran  v . Insurance  Company,  6 Wall.,  10 ; 
Dale  v.  New  Eng.  Ins.  Co.,  6 Allen,  386,  387. 

Capture  is  lawful  when  by  a declared  enemy  lawfully  com- 
missioned and  according  to  the  laws  of  war,  and  unlawful 
when  made  otherwise ; but  whether  lawful  or  unlawful,  the 
underwriter  is  liable.  Powell  v.  Hyde,  5 Ellis  & Blackb., 
607 ; Kleinworth  v.  Shepherd,  1 Ellis  & Ellis,  447  ; Berens  v . 
Rucker,  1 Blackst.  R.,  313;  Dale  v.  New  Eng.  Ins.  Co.,  6 
Allen,  389.  Eveiy  species  of  capture,  whether  by  friends  or 
enemies.  3 Kent’s  Comm.,  304,  305;  Id.,  Benecke,  348;  Dale 
v . New  Eng.  Ins.  Co.,  6 Allen,  388 ; Abbott  on  Shipp.,  27  ; 1 
Kent’s  Comm.,  108.  And  it  need  not  be  by  a lawful  govern- 
ment. United  States  v.  Palmer,  3 Wheat.,  610.  Capture  is 
used  inthe  same  sense  ns  prize.  Emerigon,  c.  12,  § 18  ; Dale 
v.  New  Eng.  Ins.  Co.,  6 Allen,  388. 

384.  De  facto  government  defined.  A de  facto 
government  is  one  in  possession  of  the  supreme  sovereign 
power,  but  without  right — a government  by  usurpation, 
founded,  perhaps,  in  crime,  and  in  the  violation  of  every 
principle  of  international  or  municipal  law  and  of  right 
and  justice ; yet  while  it  is  thus  organized,  and  in  the  exer- 
cise and  control  of  the  sovereign  authority,  there  can  be  no 
question  between  the  insurer  and  insured  as  to  the  lawfulness 
of  the  government  under  whose  commission  the  capture  has 
been  made.  Mauran  v.  Insurance  Company,  6 Wall.,  13. 

A de  facto  government  is  “the  ruling  power  of  the  coun- 
try;” “the  supreme  power;”  “the  power  of  the  country, 
whatever  it  might  be.”  Not  necessarily  a lawful  power  or 
government,  or  one  that  had  been  adopted  in  the  family  of 
nations.  Nesbitts.  Lushington,  4 Term.,  763. 

The  government  of  the  Confederate  States  was  unconstitu- 
tional and  void,  yet,  for  the  purposes  of  capture,  it  was  a de 
facto  government.  Dale  v.  New  Eng.  Ins.  Co.,  6 Allen, 
373;  Fifield  v.  Insurance  Co.,  47  Penn.  State,  166;  Dale 
v.  Merchants’  Marine  Ins.  Co.,  51  Maine,  464 ; Mauran  v.  In- 


Cl.  14-17.] 


GOVERNMENT  DEFINED,  384. 


383 


surance  Company,  6 Wall.,  14.  These  cases  exhaust  the 
whole  subject  of  capture.  But  the  confiscations  and  seques- 
trations by  the  courts  of  the  Confederate  States  were  void, 
and  within  the  principle  of  Texas  v.  White,  7 Wall.,  700. 
Legal  Tender  Cases,  12  Wall.,  554. 

If  the  seizure  be  made  on  navigable  waters,  within  the 
ninth  section  of  the  judiciary  act,  the  case  belongs  to  the 
instance  side  of  the  district  court ; but  where  the  seizure 
was  made  on  land,  the  suit,  though  in  favor  of  a libel  or  in- 
formation, is  an  action  at  common  law,  and  the  claimants  are 
entitled  to  a trial  by  jury.  Confiscation  Cases,  7 Wall.,  462  ; 
Armstrong’s  Foundry,  6 Wall.,  769 ; Morris’s  Cotton,  8 Wall., 
511.  And  as  to  what  are  navigable  waters  for  this  purpose, 
see  Insurance  Company  v.  United  States,  6 Wall.,  765 ; United 
States  v.  Hart,  Id.,  772;  Morris’s  Cotton,  8 Wall.,  511. 

There  are  several  degrees  of  de  facto  governments,  as  when 
it  assumes  the  characteristics  of  a lawful  government ; when 
its  adherents  against  the  government  dejure  do  not  incur  the 
penalties  of  treason;  and  when,  under  certain  limitations, 
obligations  assumed  by  it  in  behalf  of  the  country  or  other- 
wise will  in  general  be  respected  by  the  government  dejure 
when  restored.  (St.  11  Henry  YII,  c.  1,  2 British  Stats,  at 
Large,  82 ; 4 Bl.  Comm.,  77.)  But  see  Sir  Henry  Vane’s 
case,  6 State  Trials,  109.  The  Confederate  States  was  not  a 
government  of  this  character,  but  one  of  force.  Thorington 
v.  Smith,  8 Wall.,  9. 

There  may  be  de  facto  governments  whose  existences  are 
maintained  by  active  military  power  within  the  territories, 
and  against  "the  rightful  authority  of  established  govern- 
ments, and  while  they  exists  they  must  be  obeyed  in  civil 
matters  by  the  citizens.  United  States  v.  Rice,  4 Wheat.,  253  ; 
Fleming  v . Page,  9 How.,  614 ; Thorington  v.  Smith,  8 How., 
9,  10. 

The  central  government  established  for  the  Confederate 
States  differed  from  the  temporary  government  at  Castine 
and  Tampico  in  the  circumstance  that  its  authority  did  not 
originate  in  lawful  acts  of  regular  war,  but  it  was  not,  on 
that  account,  less  actual  or  supreme.  Thorington  v.  Smith,  8 
How.,  10.  See  Paschall’s  Digest  of  Decisions,  §§8961-8986. 

From  these  principles  it  was  deduced  that  contracts  be- 
tween citizens  of  the  Confederate  States,  payable  in  Confed- 
erate States  treasury  notes,  although  these  notes  were  them- 
selves void,  have  some  legal  force.  Id.,  11.  # 

The  acts  of  a government  in  actual  possession  in  the  ordi- 
nary administration  of  its  laws,  so  far  as  they  affect  private 
rights,  are  valid,  and  can  be  set  up  to  support  an  action  or 
defeat  a right ; such  as  the  payment  of  duties  on  goods  in 
Castine  while  held  by  the  British  in  1814.  (United  States  v . 
Rice,  4 Wheat.,  246.)  So  of  adjudications  about  lands  in 
Louisiana  in  1803  and  1804,  after  the  cession  to  the  United 
States,  but  while  the  Spanish  authorities  were  de  facto  in 


De  facto 
govern- 
ment. • 


Different 

kinds. 


The  Con- 
federate 
States. 


384 


ports,  &c.,  384-386. 


[Art.  I,  Sec.  8, 


Cases. 


What  of  the 
District  of 
Columbia.? 
136, 137. 


What  is  the 
jurisdic- 
tion as  to 
forts,  arse- 
nals, &c.  ? 

137. 


possession.  (Keene  v.  McDonough,  8 Pet.,  310;  Davis  v . 
The  Police  Jury  of  Concordia,  9 How.,  286 ; Fama  v.  Robin’s 
Adms.,  107 ; 2 Pena  y Reyna,  81 ; 2 Practica  Foruisa,  88.) 
Trevinio  v.  Fernandez,  13  Texas,  663-666. 

385.  “To  EXERCISE  EXCLUSIVE  LEGISLATION  IN  ALL 
CASES  WHATSOEVER  OVER  SUCH  DISTRICT,”  &C.  Oil  22 
June,  1874,  Congress  passed  an  act  revising  the  laws  of  the 
District  of  Columbia.  On  21  Feb.,  1871,  the  Corporations  of 
Washington  and  Georgetown  were  abolished,  and  a District 
Government,  with  a Governor  and  Legislative  Council,  was 
created  ; but  that  government,  with  its  Board  of  Public 
Works,  was  abolished  by  the  act  of  20  June,  1874,  for  the 
government  of  the  District  of  Columbia.  This  act  placed  the 
District  under  the  supervision  of  Commissioners,  and  destroys 
the  whole  elective  system.  17  Stat.,  116.  The  act  creating 
a governor  and  legislative  body  was,  in  fact,  but  a continua- 
tion of  a municipality,  in  which  the  District  of  Columbia  be- 
came a corporation,  with  the  governor  corresponding  to  the 
mayor,  and  the  legislature  to  the  aldermen.  The  board  of 
public  works  is  not  a corporation,  but  the  mere  officers  of 
the  District,  for  whose  acts  the  District  government  is  re- 
sponsible. This  case  (1  McArthur,  322)  is  reversed.  Barnes 
v . The  District  of  Columbia,  October  Term,  1875, 1 Otto,  000. 

386.  “And  to  exercise  like  authority  over  all 

PLACES  PURCHASED  BY  THE  CONSENT  OF  THE  LEGISLA- 
TURE of  the  State  in  which  the  same  may  be,  for  the 
ERECTION  OF  FORTS,  MAGAZINES,  ARSENALS , DOCK  YARDS, 
AND  OTHER  NEEDFUL  BUILDINGS.”  Wile  11  the  United 
States  own  land  in  a State,  which  has  not  ceded  jurisdiction 
for  objects  either  general  or  special,  the  rights  and  remedies 
in  relation  to  it  are  those  which  usually  apply  to  other  land 
owners  within  the  State,  upon  the  principle  that  the  lex  loci 
rei  sitae  governs  as  to  remedies.  (United  States  v.  Crosby,  7 
Cr.,  115  ; Kerr  v.  Moore,  9 Wheat.,  565  ; McCormick  v.  Sulli- 
vant,  10  Wheat.,  192  ; Robinson  v.  Campbell,  3 Wheat.,  212, 
219.)  So  the  Government,  as  a mere  proprietor,  must  in  most 
respects  be  treated  as  other  proprietors  as  to  all  servitudes, 
easements,  and  other  charges.  (Story’s  Conflict  of  Laws,  § 
447.)  United  States  v.  Ames,  1 Woodbury  & Minot,  80. 

The  law$  of  the  United  States,  and  not  those  of  the  State, 
punish  offenses  within  the  ceded  jurisdiction.  Id.,  81,  82. 

The  laws  of  the  State  in  reference  to  the  ceded  property 
may  be  controlled  by  the  acts  of  Congress  and  the  Constitu- 
tion, if  such  laws  tend  to  destroy  or  injure.  (Attorney  Gen- 
eral Butler,  1150-1152.)  And  the  ordinary  laws  of  the  Stat  e 
do  not  prevail  within  the  territory  ceded  to  the  Government. 
(Commonwealth  v.  Clary,  8 Mass.,  72;  United  States  v.  Bev- 
ens,  3 Wheat.,  336,  338;  Cohens  v.  Virginia,  6 Wheat.,  264, 
364.)  The  States  wherein  such  establishments  exist,  if  juris- 


Cl.  17,  18.] 


GENERAL  POWER,  386,  387. 


385 


diction  over  them  has  been  ceded,  do  not  regard  them  or 
their  occupants  as  subject  to  any  of  the  State  laws. 

They  cannot  vote  nor  be  taxed.  (U.  S.  v.  Cornell,  2 Mason, 
60.)  All  rights  may  be  enforced  through  the  courts  of  the 
United  States,  and  all  wrongs  punished  thereby.  (Cohens  v. 
Virginia,  6 Wheat.,  264,  428.)  Congress  alone  can  prescribe 
punishments  for  crimes  within  such  cessions.  The  States  can- 
not tax  the  property  of  individuals  nor  of  the  United  States 
there.  (Attorney  General  Wirt’s  Opinion,  Sep.  8tli,  1823, 
pages  101,  469  ; Dobbins  v.  Commissioners  of  Erie  county,  16 
Wheat.,  435.)  ISTor  can  the  States  pass  statutes  of  limitation 
affecting  the  property  of  the  United  States  held  for  special 
purposes.  (Jordan  v.  Barrett,  4 How.,  169.)  United  States  v . 
Ames,  1 Woodberry  & Minot,  84,  85. 

But  a distinction  is  made  between  those  who  reside  upon 
the  reservation  and  those  who  are  employed  there  and  reside 
elsewhere.  Commonwealth  v.  Cleary,  8 Mass.,  74. 

387.  “To  MAKE  ALL  LAWS  WHICH  SHALL  BE  NECES- 
SARY AND  PROPER  FOR  CARRYING  INTO  EXECUTION  THE 

foregoing  powers.”  This  section  is#o  be  read  in  con- 
nection with  the  tenth  amendment.  It  was  undoubtedly  in- 
troduced to  exclude  all  doubt  in  respect  to  the  existence  of 
implied  powers,  while  the  words  “necessary  and  proper” 
were  intended  to  have  a “sense,”  (to  use  the  words  of  Mr. 
Justice  Story,)  “at  once  admonitory  and  directory,  and  to 
require  that  the  means  used  in  the  execution  of  an  express 
power  should  he  bona  fide  appropriate  to  the  end.”  (1  Story 
on  Constitution,  p.  142,  § 1253.)  Hepburn  v.  Griswold,  8 
Wall.,  614.  Before  we  can  hold  the  legal  tender  acts  unconsti- 
tutional we  must  be  convinced  that  they  were  not  appropriate 
means,  or  conducive,  in  any  degree,  to  the  execution  of  any  or 
all  of  the  powers  of  Congress  or  of  the  Government ; or  else 
we  must  hold  that  they  were  prohibited.  Power  over  a 
particular  subject  may  be  exercised  as  auxiliary  to  an  express 
power,  though  there  is  another  express  power  relating  to  the 
same  subject  less  comprehensive.  (United  States  v.  Marigold, 
9 How.,  560.)  Congress  must  possess  the  choice  of  means, 
and  must  be  empowered  to  use  any  means  which  are  in  fact 
conducive  to  the  exercise  of  a power  granted  b5^  the  Consti- 
tution. The  Government  is  to  pay  the  debts  of  the  Union, 
and  must  be  authorized  to  use  the  means  which*  appear  to 
itself  most  eligible  to  effect  that  object.  (Fisher  v.  Blight,  2 
Cranch,  358.)  In  McCulloch  v.  Maryland,  4 Wheat.,  405,  it  was 
finally  settled  that  in  the  gift  by  the  Constitution  to  Congress 
of  authority  to  enact  laws  “ necessary  and  proper”  for  the 
execution  of  all  the  powers  created  by  it,  the  necessity  spoken 
of  is  not  to  be  understood  as  an  absolute  one.  On  the  con- 
trary, this  court  then  held  that  the  sound  construction  of  the 
Constitution  must  allow  to  the  national  legislature  that  dis- 
cretion, with  respect  to  the  means  by  which  the  powers  it 


Forts,  ar- 
senals, &c. 


What  is  the 
general 
power  to 
make  laws? 
Page  269, 
note  269. 


168. 


386 


HABEAS  CORPUS,  387-389. 


[Art.  I,  Sec.  9, 


Construc- 
tive pow- 
ers. 

Ends  and 
means. 


What  is  the 
rule  as  to 
necessary 
and  proper? 
Page  325, 
clause  2. 


What  of 
migration 
and  impor- 
tation? 


What  of  the 
habeas  cor - 
pusf 
140, 141. 


What  is  the 
power  of 
the  United 
States 
Court  over 
the  sub- 
ject? 


confers  are  to  be  carried  into  execution,  which  will  enable 
that  body  to  perform  the  high  duties  assigned  to  it  in  the 
manner  most  beneficial  to  the  people.  Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consistent  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional.  (Mc- 
Culloch v . Maryland,  4 Wheat.,  421.)  Legal  Tender  Cases, 
12  Wall.,  539;  Hepburn  v.  Griswold,  8 Wall.,  614;  Paschal’s 
Dig.  of  Dec.,  §§7465-7484. 

388.  ” Necessary  and  proper.”  Every  doubt  is  to 
be  resolved  in  favor  of  the  constitutionality  of  a law.  The 
judicial  power  is  to  be  exercised  with  delicacy  and  caution. 
(Twitchell  v.  Blodgett,  13  Mich.,  127 ; Tyler  v.  The  People, 
8 Id.,  320 ; People  v.  Mahoney,  13  Id.,  482.)  And  while, 
ordinarily,  this  court  will  follow  the  State  courts  in  the 
constructions  of  their  constitutions,  yet  when  town  or  county 
bonds  have  issued  and  been  circulated,  and  the  question  has 
become  commercial,  this  court  will  construe  those  State  con- 
stitutions for  itself.  (Gilman  v.  Sheboygan,  2 Black,  513; 
United  States  v.  Babbit,  1 Black,  61 ; Swan  v.  Williams,  2 
Mich.,  427;  Meyer  v.  Muscatine,  1 Wall.,  389;  The  People 
v.  Salem,  20  Mich.,  452;  Bay  City  v.  The  State  Treasurer, 
23  Id.,  499 ; Gelpecke  v.  Dubuque,  1 Wall.,  175 ; Butz  v.  Mus- 
catine, 8 Wall.,  579 ; Railroad  Company  v.  County  of  Otoe,  16 
Wall.,  567 ; Sedgwick  on  Statutory  and  Constitutional  Laws, 
p.  90;  Olcott  v.  The  Supervisors,  16  Wall.,  678.)  Township 
of  Pine  Grove  v.  Talcott,  19  Wall.,  676-678. 

Section  9.  xThe  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  Year  one  thousand  eight  hundred 
and  Eight,  but  a Tax  or  Duty  may  be  imposed  on 
such  Importation,  not  exceeding  ten  Dollars  for  each 
Person. 

2 The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion 
or  Invasion  the  public  Safety  may  require  it. 

389.  “The  Privilege  of  the  Writ  of  Habeas 
Corpus  shall  not  be  suspended.”  As  limited  by  the 
act  of  1789  the  writ  did  not  extend  to  cases  of  imprisonment 
after  conviction  under  sentences  of  competent  tribunals; 
nor  to  any  prisoners  in  jail  unless  in  custody  under  or  b}" 
color  of  the  authority  of  the  United  States;  or  committed 


Cl.  1,2.] 


HABEAS  CORPUS,  389. 


387 


for  trial  before  some  court  of  the  United  States;  or  required 
to  be  brought  into  court  to  testify.  But  this  limitation  has 
been  gradually  narrowed,  and  the  benefits  of  the  writ  have 
been  extended,  first,  in  1833,  (4  Stat.,  634,)  to  prisoners  con- 
fined under  any  authority,  whether  State  or  national,  for 
any  act  done  or  omitted  in  pursuance  of  a law  of  the  United 
States,  or  of  any  order,  process;  or  decree  of  any  judge  or 
court  otf'  the  United  States;  then,  in  1842,  (5  Stat.,  539,)  to 
prisoners  being  subjects  or  citizens  of  foreign  States  in  cus- 
tody under  national  or  State  authority  for  acts  done  or 
omitted  by  or  under  color  of  foreign  authority,  and  alleged  to 
be  valid  under  the  law  of  nations ; and,  finally,  in  1867,  (14 
Stat.,  385,)  to  all  cases  where  any  person  may  be  restrained 
of  liberty  in  violation  of  the  Constitution  or  of  any  treaty  or 
law  of  the  United  States.  Ex  parte  Yerger,  8 Wall.,  102. 
This  case  reviews  Wells’s  Case,  18  How.,  368;  Kaine’s 
Case,  14  How.,  103. 

In  all  cases  where  a circuit  court  of  the  United  States 
has,  in  the  exercise  of  its  original  jurisdiction,  caused  a pris- 
oner to  be  brought  before  it,  and  has,  after  inquiring  into 
the  cause  of  detention,  remanded  him  to  the  custody  from 
which  he  was  taken,  this  court,  in  the  exercise  of  its  appel- 
late jurisdiction,  may,  by  the  writ  of  habeas  corpus , aided  by 
the  writ  of  certiorari , revise  the  decision  of  the  circuit  court, 
and  if  it  be  found  unwarranted  by  law,  relieve  the  prisoner 
from  the  unlawful  restraint  to  which  he  has  been  remanded. 
Ex  parte  Yerger,  8 Wall.,  103. 

The  act  27th  March,  1868,  reads  as  follows : 

“That  so  much  of  the  act  approved  February  5,  1867,  as 
authorizes  an  appeal  from  the  judgment  of  the  circuit  court 
to  the  Supreme  Court  of  the  United  States,  or  the  exercise 
of  any  such  jurisdiction  by  said  Supreme  Court  on  appeals 
which  have  been  or  may  be  hereafter  taken,  be,  and  the 
same  is  hereby,  repealed.”  (15  Stat.,  44;  4 Stat.,  85.) 

This  law  only  repealed  the/act  of  1867 ; but  not  the  acts  of 
1789,  1833,  and  1842,  which  provided  for  revision  through 
means  of  certiorari.  Ex  parte  Yerger,  8 Wall.,  105;  Mc- 
Cardle’s  Case,  7 Wall.,  508. 

The  authority  of  the  Supreme  Court  to  issue  a writ  of 
habeas  corpus,  under  the  Constitution  and  the  judiciary  act 
of  1789,  to  examine  the  proceedings  in  the  inferior  court  to 
ascertain  whether  the  court  has  exceeded  its  authority,  is 
no  longer  an  open  question.  (Hamilton’s  Case,  3 Dali.,  17  ; 
Burford’s  Case,  3 Cr.,  448;  Ex  parte  Bollman,  4 Cr.,  75; 
Ex  parte  Watkins,  3 Pet.,  193 ; S.  C.,  7 Pet.,  568  ; Ex  parte 
Metzger,  5 How.,  176;  Ex  parte  Kaine,  14  How.,  103;  Ex 
parte  Wells,  18  How.,  307 ; Ex  parte  Milligan.  4 Wall.,  2 ; 
Ex  parte  McCardle,  6 Wall.,  318;  S.  C.,  7 Wall.,  506;  Ex 
parte  Yerger,  8 Wall.,  85.)  Ex  parte  Lange,  18  Wall.,  166. 

The  court  has  power  over  its  own  judgments  during  the 
term.  (Bassett  v.  The  United  States,  9 Wall.,  38.)  Ex  parte 
Lange,  18  Wall.,  166,  167. 


Contempt. 


Statutes. 


Appeal, 


Is  the 
power  an 
open  ques- 
tion? 


388 


NOT  SUSPENDED,  390-393.  [Art.  I,  Sec.  9. 


Define  the 
writ? 


Can  the 
judge  go 
behind  the 
return  ? 


A 


What  is  the 
rule  in 
contempt 
cases? 


Who  may 
suspend 
the  writ? 


390.  Defined.  A habeas  corpus  is  in  the  nature  of  a 
writ  of  error,  to  examine  the  legality  of  the  commitment. 
(Ex  parte  Watkins,  3 Pet.,  202.)  And  the  issuing  the  writ 
and  the  action  upon  it  are  the  exercise  of  appellate  jurisdic- 
tion. (Ex parte  Bollman,  4 Cr.,  101 ; Holmes  v,  Jennison,  14 
Pet.,  621.)  But  whether  the  jurisdiction  be  appellate  or  spe- 
cial original,  it  is  one  and  the  same  in  each  judge  and  court; 
and  by  whomsoever  rightfully  exercised,  the  effect  aqjd  con- 
sequence are  the  same.  Yarborough  v.  The  State,  2 Tex.,  522. 

391.  The  Return.  Upon  the  return  to  a habeas  cor- 
pus, whether  before  or  after  indictment,  the  judge  is  not  con- 
fined to  the  proofs  on  commitment,  or  to  the  indictment,  as 
to  the  question  of  guilt  or  innocence  ; but  he  hears  the  evi- 
dence according  to  the  very  truth  of  the  case,  and  bails  or 
recommits,  in  the  exercise  of  a sound  discretion.  (The  Peo- 
ple v.  McLeod,  1 Hill.,  398 ; act  of  1840,  p.  32,  §§  5 and  6 ; 2 
Kent’s  Comm.,  30,  31.)  And  that  discretion  will  not  be  re- 
vised by  an  appellate  court,  as  well  because  it  is  the  exercise 
of  discretion  as  because  such  a judgment  is  only  interlocu- 
tory, and  not  final.  (King  v.  Marks,  3 East.,  157 ; Yates  v. 
The  People,  6 Johns.,  421 ; Holmes  v.  Jennison,  14  Pet.,  622, 
623.)  Yarborough  v , The  State,  2 Tex.,  523,  524. 

An  appeal  in  habeas  corpus  cases  is  restricted  to  the  appli- 
cant. (Weddington  v.  Sloan,  15  B.  Monr.,  147 ; Bell  v . The 
State,  4 Gill.,  304;  Wade  v.  Judge,  5 Ala.,  130;  Barry  v. 
Marcein,  5 How.,  103;  How  v.  The  State,  9 Miss.,  690;  Ex 
parte  Perkins,  5 Cal.,  424.  Per  contra , Holmes  v . Jennison, 
14  Pet.,  540;  Ex  parte  Lafonta,  2 Rob.,  495;  Yates  v.  The 
People,  6 John.,  338.)  McFarland  v.  Johnson,  27  Tex.,  106. 

392.  Contempt.  Although  an  appellate  court  will  not, 
in  general,  revise  a judgment  for  contempt,  yet  if  the  inferior 
court  had  no  jurisdiction,  or  exceeded  its  jurisdiction  in 
making  the  order  for  imprisonment,  it  will  revise  the  ruling 
and  discharge  the  prisoner  thus  illegally  committed  for  a 
contempt.  (Ex  parte  Adams,  25  Miss.,  883 ; Ex  parte  Cohen, 
6 Cal.,  318,  320.)  Holman  v.  The  Mayor  of  Austin,  34  Tex., 
671,  672.  For  full  texts  see  Paschal’s  Digest  of  Decisions, 
§§14,337-14,397.  Substantially  the  same  doctrine  is  taught 
in  13  Opinions,  451. 

393.  “ Shall  not  be  suspended.”  This  whole  article 
of  the  Constitution  is  devoted  to  the  legislative  department 
of  the  Government,  and  has  no  reference  to  the  executive 
department.  And  this  clause  is  immediately  followed  by  an 
enumeration  of  certain  subjects  to  which  the  powers  of  legis- 
lation shall  not  extend.  Congress  is  the  conclusive  judge  as 
to  whether  the  public  safety  does  or  does  not  require  the 
suspension.  The  second  article  does  not  confer  on  the  Presi- 
dent the  right  to  suspend  the  writ.  And  considering  the 


Cl.  2.]  CONFLICT  OF  AUTHORITY,  393-395. 

Vth  and  Vlth  amendments,  I can  see  no  ground  in  any 
emergency  for  supposing  that  the  President  may  authorize 
the  suspension  of  the  writ  of  habeas  corpus  or  the  arrest  of  a 
citizen  except  in  aid  of  the  judicial  power.  From  the  earliest 
history  of  the  common  law  if  a person  was  imprisoned,  no 
matter  by  what  authority,  he  had  the  right  to  the  writ  of 
habeas  corpus  to  bring  his  case  before  the  king’s  bench ; if 
no  sufficient  warrant  of  commitment  had  been  sent  with 
him  he  was  entitled  to  his  discharge.  The  contests  from 
the  time  of  Magna  Charta  were  ended  by  the  statute  of 
Charles  II,  commonly  called  the  habeas  co?pus  act.  The 
statute  was  remedial,  but  it  gave  no  new  right.  (3  Bl.  Comm., 
33,  34 ; 3 Hallam  Court  History,  19.)  The  right  to  suspend 
the  writ  belongs  to  the  legislature  in  England  and  America. 
(1  Bl.  Comm.,  136  ; 3 Story’s  Comm.,  § 1336.)  Ex  parte  Mer- 
riman,  Taney’s  C.  C.  Decisions,  255-270.  And  see  Paschal’s 
Dig.  of  Decisions,  §§  14376,  14397.  But  President  Lincoln 
refused  to  obey  the  writ  and  continued  to  suspend  it  until 
Congress  bj^  act  gave  him  the  power  to  do  so.  (12  Stat., 
755;  13  Stat.  734.)  The  Chief  Justice  had  the  better  of  the 
argument,  but  the  President,  like  Jefferson  Davis  at  Rich- 
mond,  acted  upon  his  notions  of  necessities  of  the  case. 

394.  By  what  law  governed.  The  proceedings  are 
not  governed  by  the  laws  of  the  States,  but  by  the  common 
law  of  England  as  it  stood  at  the  adoption  of  the  Constitu- 
tion, subject  to  such  alterations  as  Congress  has  prescribed. 
{Ex  parte  Watkins,  3 Pet.,  193 ; Ex  parte  Randolph,  2 
Brock.  C.  C.,  447.)  Therefore  no  court  or  judge  is  bound  by 
the  decision  of  any  other  judge  in  refusing  the  writ  or  dis- 
charge, but  every  judge  may  act  upon  his  own  independent 
judgment.  (Ex parte  Partington,  13  Mees.  & W.,  679;  Cana- 
dian Prisoners’  Case,  5 Id.,  32,  47 ; Rex  v.  Suddis,  1 East, 
306,  314;  Burdett  v.  Abbott,  14  Id.,  91;  Leonard  Watson’s 
Case,  9 Ad.  & Ell.,  731.)  Ex  parte  Kaine,  3 Blatch.  C.  C.,  5. 

395.  Where  there  is  conflict  of  United  States 
and  State  jurisdiction.  Upon  the  principles  and  rea- 
soning in  Ableman  v . Booth,  and  The  United  States  v.  Booth, 
(21  How.,  506,)  a State  court  cannot,  upon  habeas  corpus  or 
any  other  process,  release  a party  held  in  custody  by  an 
officer  of  the  United  States.  Whenever  any  conflict  arises 
between  the  State  and  United  States  authorities,  those  of  the 
national  Government  must  have  supremacy  until  the  validity 
of  the  different  enactments  and  authorities  can  be  determined 
by  the  authorities  of  the  latter.  And  hence  while  a State 
court  may  issue  a writ  of  habeas  corpus  upon  the  allegation 
of  illegal  imprisonment,  yet  if  it  appear  to  the  applicant  that 
the  party  is  imprisoned  upon  the  authority  of  the  United 
States ; or  if,  upon  examination  of  the  officer’s  return,  it  be 
made  so  to  appear,  the  State  judge  shall  proceed  no  further. 
The  officer  upon  whom  the  writ  is  served  should  make  a full 


389 


Who  may 
suspend. 


What  law 
governs  ? 


If  there  be 
conflict  of 
jurisdic- 
tion ? 


390 


BILL  OF  ATTAINDER,  395-397.  [Art.  I,  Sec.  9, 


Authority. 


May  there 
be  appeal  ? 


Bill  of 
attainder  ? 
142. 


Define  bill 
of  attaind- 
er. 


return,  so  as  to  show  the  authority  or  color  of  authority  for 
the  detention.  Enlisted  soldiers  are  within  these  rules,  and 
a State  judge  cannot  discharge  them  upon  a habeas  corpus . 
Tarble’s  Case,  13  Wall.,  401-412. 

396.  No  appeal  lies.  And  because  of  the  concurrence 
of  jurisdiction  in  habeas  corpus  cases,  and  because  the  judg- 
ment of  refusal  is  but  interlocutory,  and  because  action  upon 
the  evidence  rests  in  the  sound  discretion  of  the  court,  an  ap- 
peal or  writ  of  error  from  the  decision  refusing  bail  does  not 
lie,  in  the  absence  of  a statute  expressly  allowing  the  appeal. 
(Holmes  v,  Jennison,  14  Pet.,  562-623;  Grayson  v.  Virginia, 
3 Dallas,  321 ; United  States  v.  Moore,  3 Cr.,  173;  Durosseau 
v . The  United  States,  6 Cr.,  312 ; Ex  parte  Kearney,  7 Wheat., 
45;  Yates  v.  The  People,  6 Johns.,  337.)  But  the  party  may 
bring  a second  habeas  corpus  before  the  same  Supreme  Court. 
Yarborough  v.  The  State,  2 Tex.,  526-559;  Tlie  State  v . 
Daugherty,  5 Tex.,  3,  4;  Ex  parte  Coupland,  26  Tex., 
390.  fSee  Paschal’s  Digest  of  Decisions,  Appeal  and  Error, 
§§  2502,  2522-2527,  2679,  3511.] 

3 No  Bill  of  Attainder  or  ex  post  facto  Law  shall 
be  passed. 

397.  “Bill  of  attainder.”  (See  note  142.^  Bills  of 
attainder  were  acts  of  Parliament  whereby  sentence  of  death 
was  pronounced  against  the  accused.  Courts  of  police  were 
employed  only  to  register  the  edict  and  carry  the  sentence 
into  execution.  Bills  of  pains  and  penalties  were  acts  de- 
nouncing milder  punishments.  The  term  u bill  of  attainder” 
in  this  Constitution  is  generical,  and  embraces  both  classes. 
(2  Woodson’s  Lectures,  622-624;  Gaines  v.  Buford,  5 Dana, 
509 ; Story’s  Constitution,  § 1344;  Ex  parte  Garland,  4 Wall., 
324;  Drehman  v.  Stifle,  8 How.,  601.)  A provision  of  the 
constitution  of  Missouri,  which  enabled  those  sued  for  the 
exercise  of  military  power  during  the  rebellion  to  plead  the 
Constitution  in  bar  is  not  a bill  of  attainder,  but  in  the  na- 
ture of  an  indemnity  act.  (Rowland  on  the  English  Consti-. 
tution,563;  2 May,  267,  324.)  Drehman  v.  Stifle,  8 Wall.,  601. 

The  confiscation  act  of  1862  has  two  distinct  parts,  each 
having  a separate  object.  The  first  four  sections  provide  for 
the  punishment  of  treason  and  rebellion  as  criminal  cases, 
and  are  permanent.  The  remaining  sections  provide  for  the 
confiscation  of  the  property  of  certain  designated  parties  as 
enemies’  property,  and  are  permanent.  (Miller  v.  The 
United  States,  11  Wall.,  268.)  If  defense  be  made  the  case  is 
tried  by  jury ; if  none,  by  the  court.  If  there  be  intorvenors 
who  set  up  liens,  collateral  proceedings  are  had  suitable  to 
the  case.  (Garnett’s  Case,  11  Wall.,  257 ; McVeighs,  Id.,  266 ; 
Miller’s  Case,  Id.,  268;  The  Union  Insurance  Co.,  6 Wall., 


Cl.  2,  3.] 


EX  POST  FACTO  LAW,  397,  398. 


391 


763;  Armstrong’s  Foundery,  6 Wall.,  769;  Hart’s  Case,  6 
Wall.,  770.)  The  Confiscation  Cases,  1 Wood,  328,  329. 

398.  u Or  ex  post  facto  law  shall  be  passed.” 
The  words  ex  post  facto  imply  that  something  has  been  done, 
after  some  other  thing,  in  relation  to  the  latter.  The  use  of 
these  words,  as  descriptive  of  a law,  is  nominally  confined  to 
the  criminal  law.  Such  a law  is  defined  to  be  one  which 
renders  the  act  punishable  in  a manner  it  was  not  when 
committed.  It  extends  to  laws  passed  after  the  act,  affect- 
ing the  person  by  punishment  for  the  act  in  his  person  or 
estate.  (Calder  v.  Bull,  3 Dallas,  386,  390 ; Strong  v.  The 
State,  1 Blackf.  Ind.,  193  ; Satterlee  v.  Matthewson,  2 Pet., 
413.)  It  applies  exclusively  to  criminal  or  penal  and  not  to 
civil  cases.  (Sedg.  Const.  Law,  356  ; Coffin  v.  Lunt,  2 Pick., 
72 ; Commonwealth  v.  Phillips,  11  Pick.,  28 ; Calder  v . Bull, 
2 Root,  350;  Fisher  v.  Cockerill,  5 Monr.,  135;  Locke  v. 
Dane,  9 Mass.,  363  ; Woart  v.  Winnicke,  3 N.  H.,  475 ; Dash 
v.  Van  Kleeck,  7 Johns.,  488 ; Commonwealth  v.  Lewis,  6 
Binney,  271 ; Scroggin  v.  Scroggin,  1 J»  J.  Marsh.,  363 ; 2 
Pet.  App.,  681.)  Bender  v.  Crawford,  33  Tex.,  751 ; Watson 
v.  Mercer,  8 Pet.,  110  ; Carpenter  v.  Pennsylvania,  17  How., 
463;  Fletcher  v.  Peck,  6 Cr.,  138;  Society  for  the  Propaga- 
tion of  the  Gospel  v.  Wheeler,  2 Gall.,  138  ; United  States  v. 
Hall,  2 Wash.  C.  C.,  366  ; Locke  v.  New  Orleans,  4 Wallace, 
173.  The  terms  retrospective  and  ex  post  facto  are  some- 
times applied  as  synonymous,  and  retroactive  laws  are  sup- 
posed to  be  prohibited  under  the  inhibition  of  ex  post  facto 
laws ; but  the  power  to  pass  retrospective  laws,  properly  so 
called,  does  exist  in  the  several  States,  and  they  are  obliga- 
tory if  not  forbidden  by  their  own  constitutions.  (Hess  v. 
Werts,  4 Serg.  & R.,  364;  Osborne  v.  Huger,  1 Bay,  179; 
Dash  v.  Van  Kleeck,  7 Johns.,  477 ; Bedford  v.  Shilling,  4 
Serg.  & R.,  405 ; Commonwealth  v.  Duane,  1 Binney,  601 ; 
Moore  v.  Houston,  3 Serg.  & R.,  159  ; Ogden  v.  Blackledge, 
2 Cr.,  272 ; Satterlee  v.  Matthewson,  2 Pet.,  414;  Watson  v. 
Mercer,  8 Pet.,  110  ; Charles  River  Bridge  v.  Warren  Bridge, 
11  Pet.,  420  ; Bennett  v.  Boggs,  1 Bald.>,  74.)  Bender t?.  Craw- 
ford, 33  Tex.,  751. 

Those  provisions  of  the  Constitution  which  deny  to  the 
legislature  power  to  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  or  to  pass  a bill  of 
attainder  or  an  ex  post  facto  law,  are  inconsistent  in  their 
spirit  and  general  purpose  with  any  provision  which  at  once, 
without  trial,  deprives  a whole  class  of  persons  of  offices  held 
by  them  for  cause  however  grave.  In  re  Caesar  Griffin,  25  Tex. 
Supp.,  637.  Lord  Coke  and  all  the  judges,  in  Calvin’s  case,  say 
that  the  citizen  cannot  be  deprived  of  his  rights  by  a matter 
ex  post  facto.  (Kelly  v.  Harrison,  2.  Johns.  Cas.,  29;  Jack- 
son  v.  Lunn,  3 Johns.  Cas.,  109;  Taber  v.  Perrott,  9 Cr.,  40; 
United  States  v . Perchman,  7 Pet,,  86,  87 ; Jones  v . McMas- 

30 


Cases. 


What  is  an 
ex  post  facto 
law  ? 

156. 


How  dis- 
tinguished 
from  retro- 
spective ? 

142, 143. 


How  as  to 
property  in 
offiee? 


392 


COMMERCE,  398 


[Art.  I,  Sec.  9, 10, 


Cases. 

Define  the 
term. 

15G. 


Give  its 
origin. 


What  of  a 
law  chang- 
ing the 
place  of 
trial ? 


What  of  a 
capitation 
or  direct 
tax? 

144. 

302. 

Exports. 


Preference 
and  duties. 
146. 


ters,  20  How.,  20;  White  v.  Burnley,  20  How.,  250;  McMul- 
len v.  Hodge,  5 Tex.,  34;  2 Kent’s  Comm.,  56,  57.)  Kilpat- 
rick v . Sisneros,  23  Tex.,  131.  Ex  post  facto  laws  are  such 
as  create  or  aggravate  crime,  or  increase  the  punishment,  or 
change  the  rules  of  evidence  for  the  purpose  of  conviction. 
Calder  v.  Bull,  3 Dallas,  390;  Cummings  v . Missouri,  4 
Wallace,  326;  Shepherd  r.  People,  25  N.  Y.,  406;  Holt  v. 
The  State,  2 Tex.,  364.  Dawson  v.  The  State,  6 Tex.,  347. 
It  was  used  in  Justinian’s  time  as  a quaint  phrase,  just 
as  in  ca . sa.  or  writ,  in  the  pone , or  quo  minus  is  used  at 
the  present  day.  (L.  34,  Tit.  4,  Law  15.)  An  ex  post  facto 
law  is  where,  after  an  action,  indifferent  in  itself,  has  been 
committed,  the  legislature  then  for  the  first  time  declares  it 
to  have  been  a crime.  (1  Blackst.  Comm.,  46.)  But  non  constat , 
that  the  definition  excludes  civil  laws.  Clausula  vel  dispositio 
inutilis  per  prcesumptionem  vel  causam  remotam  ex  post  facto 
non  fulcitur . For  that  if  a compact  be  notin  itself  usurious, 
no  matter  ex  post  facto  shall  make  it  so.  So  where  a deed 
is  good  in  its  creation,  it  may  become  void  ex  post  facto  by 
vagueness,  &c.  (Shepherd’s  Touchstone,  63,  68,  20;  Bul- 
strode,  1715,  B a,  p.  416.)  And  the  performance  of  some- 
thing ex  post  facto  within  the  realm,  in  pursuance  of  a pre- 
ceding contract,  &c.,  doth  not  make  it  cease  to  be  main- 
tained. (Godolphin’s  Views  of  Admiralty,  109.)  Wilkinson 
v.  Leland,  2 Pet.  App.,  681.  [These  were  views  of  Mr.  Jus- 
tice Johnson,  to  show  that  restricting  the  term  to  criminal 
laws  was  too  narrow  a view.]  Paschal’s  Digest  of  Decisions, 
§§  12143-12159. 

A law  changing  the  place  of  trial  from  one  county  to  an- 
other county  in  the  same  district,  or  even  to  a different  dis- 
trict from  that  in  which  the  offense  was  committed  or  the 
indictment  found,  is  not  an  ex  post  facto  law,  though  passed 
subsequent  to  the  commission  of  the  offense  or  the  finding  of 
the  indictment.  An  ex  post  facto  law  does  not  involve  a 
change  of  the  place  of  trial  of  an  alleged  offense  after  its  com- 
mission. Gut  v . Minnesota,  9 Wall.,  38,  40. 

4No  Capitation,  or  other  direct,  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration 
herein  before  directed  to  be  taken. 

5No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

6 No  Preference  shall  be  given  by  any  Regulation 
of  Commerce  or  Revenue  to  the  Ports  of  one  State 
over  those  of  another:  nor  shall  Vessels  bound  to, 
or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay 
Duties  in  another. 


Cl.  3-8,1.] 


CONTRACTS,  399,  400. 


393 


’No  Money  shall  be  drawn  from  the  Treasury,  but 
in  Consequence  of  Appropriations  made  by  Law ; 
and  a regular  Statement  and  Account  of  the  Receipts 
and  Expenditures  of  all  public  Money  shall  be  pub- 
lished from  time  to  time. 

8No  title  of  Nobility  shall  be  granted  by  the  United 
States ; and  no  Person  holding  any  office  of  Profit 
or  Trust  under  them,  shall,  without  the  Consent  of 
the  Congress,  accept  of  any  Present,  Emolument^ 
Office,  or  Title  of  any  Kind  whatever,  from  any  King, 
Prince,  or  foreign  State. 

Section  10.  xNo  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation ; grant  Letters  of  Marque 
and  Reprisal;  coin  Money;  emit  Bills  of  Credit; 
make  any  Thing  but  gold  and  silver  Coin  a Tender 
in  Payment  of  Debts;  pass  any  Bill  of  Attainder,  ex 
post  facto  Law,  or  Law  impairing  the  Obligation  ‘of 
Contracts,  or  grant  any  Title  of  Nobility. 

399.  “Emit  bills  of  credit.”  The  bills  of  State  banks, 
although  in  reality  based  upon  securities  furnished  by  the 
State,  are  not  bills  of  credit.  (Briscoe  v.  The  Bank  of  the 
Commonwealth  of  Kentucky,  11  Pet.,  257 ; Woodruff  v.  Trap- 
nail,  10  How.,  205;  Curran?;.  Arkansas,  15  How.,  315;  Bar- 
rington v.  rfhe  Bank  of  Alabama,  13  How.,  12;  1 Kent1 


Appropria- 
tions and 
accounts. 
149. 


Titles  of 
nobility. 
150, 151. 


Emolu- 

ments. 


What  are 
the 

absolute 
inhibitions 
upon  the 
States  ? 
152-161. 


What  are 
bills  of 
credit? 

154. 


Comm.,  p.  409,  10th  ed.,  note  A.) 
Wall.,  552,  553.  At  first  it  read 


Yeazie  Bank  v.  Fenno,  8 
“without  the  consent  of 


Congress.”  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.,  422. 

400.  “Impairing  the  obligation  of  contracts.” 
To  entirely  annihilate  the  remedy  is  an  impairment  of  the 
contract.  (Calder  v.Bull,  3 Ball,  388.)  A State  can  no  more 
impair  a contract  by  its  constitution  than  by  a statute.  The 
homestead  exemption  of  Georgia,  as  to  anterior  contracts,  is 
void ; and  the  fact  that  the  constitution  was  adopted  under  the 
reconstruction  laws  makes  no  difference.  Georgia,  notwith- 
standing secession,  remained  a State  in  the  Union.  Gunn  v. 
Barry,  15  Wall.,  622,  623. 

If  a contract  be  valid  by  the  laws  of  the  State  when  entered 
into,  no  decision  of  the  highest  courts  of  the  State  subse- 
quently made  can  impair  its  obligation.  Chicago  v.  Sheldon, 
9 Wall.,  50,  55,  56;  The  City  v . Samson,  9 Wall.,  485. 

After  the  rendition  of  judgment  the  legislature  cannot  so 
change  the  law  as  to  destroy  the  contract  or  prevent  the 


How  are 
the  obliga- 
tions of 
contracts 
impaired? 


When  may 
they  not  be 
impaired? 
157. 


394 


CONTRACTS,  400. 


[Art.  I,  Sec.  10, 


The  reme- 
dy. 


161. 


The  Fede- 
ral deci- 
sions rule. 


The  whole 
estate. 


Are  bank 
notes  con- 
tracts? 
Page  157, 
note  157. 


Retroac- 
tive laws. 
What  are 
the  rights 
of  the 
States  to 
pass  retro- 


enforcement  of  the  judgment.  (Bronson  v.  Kinzie,  1 How., 
297 ; McCracken  v.  Hayward,  2 How.,  608;  Van  Hoffman  v. 
The  City  of  Quincy,  4 Wall.,  557 ; Swift  v.  Tyson,  16  Pet., 
19;  Jefferson  Br.  Bk.  v.  Skelley,  16  Pet.,  19 ; Biggs  v.  John- 
son Co.,  6 Wall.,  166.)  Butz  v.  City  of  Muscatine,  8 Wall.. 
583,  584. 

Those  decisions  which  deny  that  the  remedj^  forms  a part 
of  the  contract  are  not  sound.  The  Sequestration  Cases,  30 
Tex.,  696.  The  Texas  stay  laws  impaired  the  obligation  of 
contracts,  and  that,  therefore,  they  were  unconstitutional. 
Id.,  699;  Jones  v.  McMahan,  30  Tex.,  732-735.  See  a col- 
lection of  the  cases  in  5th  American  Law  Begister,  732. 
By  annexation  Texas  adopted  the  Constitution  of  the  United 
States  and  the  interpretations  its  supreme  judiciary.  Jones 
v.  McMahan,  30  Tex.,  734.  735. 

Contracts  valid  when  made  continue  valid,  and  capable  of 
enforcement,  so  long  at  least  as  peace  lasts  between  the  gov- 
ernments of  the  contracting  parties,  notwithstanding  a change 
in  the  conditions  of  business  which  originally  led  to  their  cre- 
ation. Bailroad  Co.  v.  Bichmond,  19  Wall.,  589. 

Where  an  estate  was  settled  upon  trustees  with  use  for 
life,  remainder  in  fee,  and  all  parties  who  could  appear  did 
personally  and  by  guardian  go  before  the  legislature  and 
agree  to  private  acts,  changing  the  direction  of  the  estate  to 
some  extent,  and  authorizing  the  chancellor  to  appoint  new 
trustees,  and  the  chancellor  directed  what  part  of  the  estate 
should  be  sold,  and  afterwards  directed  another  line  to  be 
run  and  a sale  to  be  made,  so  as  to  make  the  life  estate  avail- 
able, the  sales  were  upheld  against  the  argument  that  the 
private  legislation  impaired  the  obligation  of  contracts.  (Sin- 
clair v.  Jackson,  8 Cow.,  579;  Cochran  r.Van  Surlay,  1 Wend., 
439;  Towle  v.  Forney,  14  Mew  York,  428;  Williamson  v. 
Berry,  8 How.,  495;  Suydam  v.  Williamson,  20  How.,  429; 
Same  v.  Same,  24  How.,  427.)  Suydam  ^.Williamson,  6 Wall., 
728. 

In  these  cases  the  Supreme  Court  of  the  United  States 
yielded  to  the  principle  of  that  court  to  follow  the  State 
courts  as  to  the  law  of  property  and  the  interpretation  of  the 
State  constitutions. 

4 4 Contracts.  ’ ’ The  case  of  C urran  v.  Arkansas,  (1 5 Wall . , 
304,)  approved.  Where  by  a bank  charter  the  assets  of  the 
bank  are  to  be  applied  to  the  redemption  of  its  bills  or  pay- 
ment of  its  debts,  the  State  has  no  right  to  apply  them  to 
other  purposes.  Barings  v.  Dabney,  19  Wall.,  11.  And  see 
F urn  am  v.  Nichols,  9 Wall.,  62. 

Where  the  constitution  of  a State  does  not  prohibit  it.  a 
municipal  corporation  maybe  empowered  to  donate  its  bonds 
to  a railroad  company  and  collect  taxes  for  the  payment  of 
the  bonds.  Town  of  Queensbury  v.  Culver,  19  Wall.,  90,  91. 

The  right  of  a State  legislature  to  pass  retroactive  laws, 
where  there  is  no  inhibition  in  the  constitution  of  the  State, 


Cl.  1,2.]  IMPORTS  AND  EXPORTS,  400-402. 


395 


provided  they  do  not  impair  the  obligation  of  the  contract, 
and  are  not  ex  post  facto  in  their  character,  is  too  well  settled 
to  admit  of  doubt.  (Williamson  v.  Leland,  2 Pet.,  627;  Watson 
v.  Mercer,  8 Pet.,  88 ; Satterlee  v.  Matthewson,  2 Pet.,  380  ; 
Society  v . Pawlett,  4 Pet.,  480 ; Railroad  v.  Nesbit,  10  How., 
401;  Albee  v.  May,  2 Paine,  74;  Andrews  v . Russell,  7 
Blackford,  475.)  Drehman  v.  Stifle,  8 Wall.,  603. 

401.  44 Exemptions.”  4 4 All  property  of  said  cor- 
poration shall  be  exempt  from  taxation”  used  in  the  char- 
ter of  a charitable  institution  are  words  of  contract.  And  a 
future  legislature  cannot  repeal  such  an  exemption.  Home 
of  the  Friendless  v.  Rouse,  8 Wall.,  436,  437 ; Washington 
University  v.  Rouse,  Id.,  439.  Justices  Miller  and  Field  and 
the  Chief  Justice  dissenting  on  the  ground  that  one  legisla- 
ture cannot  bind  future  legislatures.  Id.,  441. 

402.  The  remedy.  The  legislature  may  pass  a law 
regulating  the  remedy  after  a suit  has  been  instituted.  And 
if  a suit  be  in  a State  court  against  a State,  under  a State  law 
authorizing  such  suit,  the  legislature  may  impose  new  terms 
upon  the  plaintiff,  and  might  even  abolish  the  law  authorizing 
such  suit,  and  thus  effect  its  dismissal.  Beers  v . Arkansas, 
20  How.,  528-530. 

The  statute  of  limitation  belongs  to  the  remedy,  not  the 
right ; and  a change  of  legislation,  which  lengthens  the  time 
or  deducts  certain  years  is  not  subject  to  constitutional  objec- 
tion. Indeed,  the  convention  had  the  power  to  disregard 
vested  rights ; and,  if  the  people  ratified,  such  changes  had 
no  restriction  except  in  the  federal  Constitution.  (McMullen 
v.  Hodges,  5 Tex.,  73;  Oliver,  Lee  & Co’s  Bank,  21  1ST.  Y., 
12;  Dash  v.  Van  Kleek,  7 Johns.,  477;  Smith’s  Com.  on 
Stat.  and  Const.  Law,  166-168 ; Sedgwick  on  Const.  Law, 
§§411,  412,  682,  683,  692,  693  ; Ang.  on  Lim.  §§66,  67 ; Goshen 
v.  Stonington,  4 Conn.,  209 ; In  the  matter  of  the  Reciprocity 
Bank,  22  1ST.  Y.,  12.)  But  it  would  seem  that  the  suspension 
of  the  statute  must  be  general,  and  not  for  particular  cases. 
(Holden  v.  Jones,  11  Mass.,  396;  Davison  v.  Johonot,  7 Met., 
397  ; Bull  v.  Conroe,  13  Wis.,  238-244.)  Bender  v.  Crawford, 
33  Tex.,  750-751,  756-761. 

2No  State  shall,  without  the  consent  of  the  Con- 
gress, lay  any  Imposts  or  Duties  on  Imports  or 
Exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  Laws;  and  the  net  Pro- 
duce of  all  Duties  and  Imposts,  laid  by  any  State 
on  Imports  or  Exports,  shall  be  for  the  Use  of  the 
Treasury  of  the  United  States;  and  all  such  Laws 


active 

laws? 


The  ex- 
emption 
laws. 


How  of 
laws  affect- 
ing the 
remedy? 

157. 


State  the 
restrictions 
upon  the 
States  as  to 
imposts, 

&e. 

162-164. 


396 


TAX  UPON  CAPITAL,  408,  404.  [Art.  I,  Sec.  10, 


Revision. 


Define  im- 
ports? 


What  are 
the  mutual 
rights  of 
taxation, 
State  and 
Federal  ? 


Tax  upon 
capital. 


shall  be  subject  to  the  Eevision  and  Controul  of  the 
Congress. 

403*  “Imposts  and  impobts”  are  used  exclusively  with 
reference  to  articles  imported  from  foreign  countries.  But 
there  was  no  intention  to  prevent  a State  from  taking  arti- 
cles brought  to  it  from  another  State.  The  case  of  Almy  v. 
California,  24  How.,  173,  is  reconcilable  with  this  opinion. 
Woodruffs.  Parham,  8 Wall.,  131-137.  It  would  seem  that 
the  tax  should  not  discriminate  against  the  products  of  the 
exporting  State.  Id.,  140.  The  License  Cases,  5 How.,  504, 
decided  no  principle  ; certainly  they  did  not  contravene  this. 
Id. ; Hirson  v.  Lott,  8 Wall.,  150. 

404.  Certain  subjects  of  taxation  are  withdrawn  from 
the  States  by  necessary  implication.  The  Federal  Govern- 
ment cannot  destroy  or  embarrass  the  State  governments,  nor 
the  States  hinder  the  powers  which  belong  to  the  national 
Government ; but  a tax  which  affects  the  latter  separately 
is  not  inhibited.  The  States  and  national  Government  must 
coexist.  Railroad  Company  v.  Peniston,  18  Wall.,  31. 

The  property  of  an  agent  of  the  Government  may  be  sub- 
ject to  taxation;  but  the  State  cannot  destroy  an  instru- 
mentality of  the  Union,  such  as  requiring  a State  stamp 
upon  bills  of  the  United  States  Bank.  Such  is  not  like  a 
tax  upon  the  real  estate  and  other  property  of  the  bank,  but 
it  is  a tax  upon  the  operations  of  an  instrument  of  the  Union 
to  carry  its  powers  into  execution.  (McCulloch  v.  Maryland, 
2 Pet.,  467.)  It  is  the  distinction  between  the  property  of  an 
agency  and  its  action.  (Osborn  v.  The  Bank  of  the  United 
States,  9 Wheat.,  738.)  And  this  distinction  was  recognized. 
The  National  Bank  v.  The  Commonwealth  of  Kentucky,  9 
Wall.,  353 ; Railroad  Company  v.  Peniston,  18  Wall.,  34^-36. 

All  subjects  to  which  the  sovereign  power  of  a State  ex- 
tends are  subjects  of  taxation ; others  are  exempt.  That 
sovereignty  extends  to  everything  which  exists  by  its  own 
authority  or  is  introduced  by  its  permission,  but  not  to  those 
means  which  are  employed  by  Congress  to  carry  into  execu- 
tion powers  conferred  on  that  body.  Such  attempt  of  use 
by  a State  is  an  abuse.  The  States  have  no  power  to  tax 
or  control  the  constitutional  laws  of  Congress.  (Weston  v. 
Charleston,  2 Pet.,  466.)  Railroad  Company  v.  Peniston,  18 
Wall.,  38. 

A tax  upon  the  capital  of  a national  bank  is  a tax  upon 
the  bank,  and  when  it  is  invested  in  the  securities  of  the 
Government  it  cannot  be  taxed,  nor  can  the  corporation  be 
taxed  as  the  owner  of  such  securities ; but  the  shareholders 
or  stockholders  (which  terms  are  synonymous)  may  be  taxed 
on  their  stocks  or  shares,  although  all  the  capital  of  the  bank 
be  invested  in  Federal  securities.  National  Bank  v.  Com- 


Cl.  2,  3.] 


397 


TONNAGE,  404-407. 

monwealth,  9 Wall.,  359;  Van  Allen  v.  Assessors,  3 Wall., 
573 ; Bradley  v.  The  People,  4 Wall.,  459. 

405.  Liquor.  A tax  of  fifty  cents  a gallon  on  liquor, 
imported  from  another  State,  being  the  same  rate  imposed 
upon  liquor  manufactured  in  Alabama,  is  constitutional. 
But  this  does  not  depend  upon  the  concurrent  power  of  the 
States  to  regulate  commerce  between  the  States.  Hinson  v. 
Lott,  8 Wall.,  152. 

It  is  settled  that  merchandise  in  the  original  packages  once 
sold  by  the  importer  is  taxable  as  other  property.  (Pervear 
v . Commonwealth,  5 Wall.,  479.)  Waring  v.  The  Mayor,  8 
Wall.,  122. 

406.  “ Except  what  may  be  absolutely  neces- 
sary FOR  EXECUTING  ITS  INSPECTION  LAWS.”  This 
power  is  not  affected  by  the  power  to  regulate  commerce. 
Steamship  Company  v.  Postwardens,  6 Wall.,  33. 

3 No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of 
War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  Delay. 

401  u Lay  ANY  DUTY  OF  TONNAGE.”  A State  may  pro- 
vide for  the  health  of  its  people,  and  although  this  power  may 
affect  commerce,  yet  such  State  laws  are  not  enacted  for  such 
object;  but  for  the  sole  purpose  of  preserving  the  public 
health,  and  they  may  be  controlled  by  Congress.  (Gibbons 
v . Ogden,  9 Wheat.,  203.)  Such  laws,  if  they  levy  a tonnage 
tax  for  quarantine  purposes  are  unconstitutional.  (Paschal’s 
Dig.,  art.  7345;  State  Tonnage  Cases,  12  Wall.,  204.)  Peete 
v.  Morgan,  19  Wall.,  581-584.  The  Constitution  contains  no 
express  restriction  upon  the  power  of  the  States  to  tax  other 
than  is  found  in  this  third  clause.  In  respect  to  property, 
business  and  persons  within  their  respective  limits,  the  power 
of  the  States  remains  entire,  notwithstanding  the  Constitu- 
tion. The  power  is  concurrent  with  the  General  Government, 
and  in  case  of  a tax  upon  the  same  subject  by  both  govern- 
ments the  claim  of  the  latter  is  supreme  ; with  this  qualifica- 
tion, the  power  of  the  States  is  absolute.  (Lane  county  v. 
Oregon,  7 Wall.,  77.)  Railroad  Company  v . Peniston,  18 
Tex.,  29. 

Tonnage,  as  applied  to  American  ships  and  vessels,  means 
the  entire  cubical  capacity  or  contents  of  the  ship  or  vessel 
expressed  in  tons  of  one  hundred  cubical  feet  each,  as  es- 
timated and  ascertained  by  those  rules  of  admeasurement  and 


Tax. 


Tax  upon 
liquor. 


The  excep- 
tion. 


State  the 
inhibitions 
on  tonnage 
<fcc. 


State  the 
rule  as  to 
health  and 
quarantine  ? 


Define  ton- 
nage. 


398 


EXECUTIVE  POWER,  407,  408.  [Art.  II,  Sec.  1, 


Tonnage. 


The  limita- 
tions. 


How  is  the 
executive 
power  vest- 
ed? 

165. 


How  far 
may  each 
department 
of  the  gov- 
ernment 
decide 
upon  the 
constitu- 
tionality of 
a law? 
Jefferson. 


computation.  (Alexander  v.  Railroad,  3 Strobhart,  598.)  It 
is  an  official  term  intended  originally  to.  express  burden  that 
a ship  would  carry,  in  order  that  the  various  dues  and  customs 
which  are  levied  upon  shipping  might  be  according  to  the 
size  of  the  vessel  or  in  proportion  to  her  capability  of  carry- 
ing burden.  Hence,  as  applied  to  a ship,  the  term  has  be- 
come almost  synonymous  with  size.  (Roman’s  Com.  and 
Nav.  Tonnage.)  State  Tonnage  Tax  Cases,  12  Wall.,  212, 
225. 

A State,  without  the  consent  of  Congress,  cannot  lay  any 
duty  of  tonnage,  nor  levy  duties  on  imports  or  exports, 
except  what  maybe  necessary  for  their  inspection  laws.  And 
it  makes  no  difference  that  the  owners  of  the  vessels  are  citi- 
zens of  the  State  which  levies  the  tax.  The  prohibition  is 
general,  and  it  withdraws  altogether  from  the  States  the 
power  to  lay  any  duty  on  tonnage  under  any  circumstances 
without  the  consent  of  Congress.  (Gibbons  v.  Ogden,  9 
Wheat.,  202 ; Sinnot  v.  Davenport,  22  How.,  238 ; Foster  v. 
Davenport,  22  How.,  245;  Perry  v.  Torrence,  8 Ohio,  524; 
The  Passenger  Tax  Cases,  7 How.,  447,  481.)  State  Tonnage 
Cases,  12  Wall.,  214;  Peete  v.  Baldwin,  19  Wall.,  582-584. 

Tonnage  duties  are  as  much  taxes  as  duties  on  imports  or 
exports ; to  which  the  prohibitions  of  the  Constitution  equally 
extend.  Hence  ships  and  vessels  employed  in  conducting 
commerce  from  one  State  to  another  are  entitled  to  the  priv- 
ileges of  ships  and  vessels  employed  in  the  coasting  trade. 
(8  Stats.,  287,  305 ; 3 Kent  Com.,  11  ed.,  303.)  State  Tonnage 
Tax  Cases,  215. 


Article  II. 

Section  1.  ^he  Executive  Power  shall  be  vested 
in  a President  of  the  United  States  of  America.  He 
shall  hold  his  Office  during  the  Term  of  four  Years, 
and,  together  with  the  Yiee  President,  chosen  for 
the  same  Term,  be  elected,  as  follows: 

408.  “ The  Executive  Power.”  Mr.  Jefferson  says : 
“The  second  question,  whether  the  judges  are  invested  with 
exclusive  authority  to  decide  on  the  constitutionality  of  a 
law,  has  been  heretofore  a subject  of  consideration  with  me 
in  the  exercise  of  official  duties.  Certainly  there  is  not  a 
word  in  the  Constitution  which  has  given  that  power  to  them 
more  than  to  the  executive  or  legislative  branches.  Ques- 
tions of  property,  of  character,  and  of* crime,  being  ascribed 
to  the  judges,  through  a definite  course  of  legal  proceedings — 
laws  involving  such  questions  belong  of  course  to  them,  and 
as  they  decide  on  them  ultimately  and  without  appeal,  they 
of  course  decide  for  themselves . The  constitutional  validity 
of  the  law  or  laws  prescribing  executive  action,  and  to  be 


r 


Cl.  1.]  EXECUTIVE  POWER,  408. 

% 

administered  by  that  branch  ultimately  and  without  appeal, 
the  executives  must  decide  for  themselves , also,  whether, 
under  the  Constitution,  they  are  valid  or  not.  So,  also,  as 
to  laws  governing  the  proceedings  of  the  legislature;  that 
body  must  judge  for  itself  the  constitutionality  of  the  law, 
and,  equally,  without  appeal  or  control  from  its  co-ordinate 
branches.  And,  in  general,  that  branch  which  is  to  act 
ultimately  and  without  appeal,  on  any  law,  is  the  rightful 
expositor  of  the  validity  of  the  law,  uncontrolled  by  the 
opinions  of  the  other  co-ordinate  authorities.” 

President  Jackson,  in  his  veto  message  upon  the  bank  bill, 
uses  this  languge : uIf  the  opinion  of  the  Supreme  Court 
covered  the  whole  ground  of  this  act,  it  ought  not  to  control 
the  co-ordinate  authorities  of  this  Government.  The  Con- 
gress, the  executive,  and  the  court,  must  each  for  itself  be 
guided  by  its  own  opinion  of  the  Constitution.” 

Mr.  Van  Buren  said:  “ Everybody  knows  that  an  act 
which  is  contrary  to  the  Constitution  is  a nullity,  although 
it  may  have  passed  according  to  the  forms  of  the  Constitu- 
tion. That  instrument  creates  several  departments,  whose 
duty  it  may  become  to  act  upon  such  a bill  in  the  perform- 
ance of  their  respective  functions.  The  theory  of  the  Con- 
stitution is,  that  these  departments  are  co-ordinate  and 
independent  of  each  other,  and  that  when  they  act  in  their 
appropriate  spheres,  they  each  have  a right,  and  it  is  the 
duty  of  each  to  judge  for  themselves  in  respect  to  the  au- 
thority and  requirements  of  the  Constitution,  without  being 
controlled  or  interfered  with  by  their  co-departments,  and  are 
each  responsible  to  the  people  alone  for  the  manner  in  which 
they  discharge  their  respective  duties  in  that  regard.  It  is 
not,  therefore,  to  be  presumed  that  that  instrument,  after 
making  it  the  President’s  especial  duty  to  take  an  oath  to 
protect  and  uphold  the  Constitution  and  prevent  its  viola- 
tion, intended  to  deny  to  him  the  right  to  withhold  his  as- 
sent from  a measure  which  he  might  conscientiously  believe 
would  have  that  effect,  and  to  impose  upon  him  the  neces- 
sity of  outraging  his  conscience  by  making  himself  a party 
to  such  a violation.”  Stanberry,  2 Trial  of  the  President,  pp. 
37-66;  Martin-  v.  Mott,  12  Wheat.,  19. 

The  English  definition  cannot  be  consulted;  for  in  Eng- 
land the  power  of  Parliament  over  the  Crown  is  unlimited. 
Like  the  legislative  and  judicial  power,  the  executive  power 
is  limited  to  the  faculties  set  forth  in  the  Constitution.  The 
words  are  but  captions  or  heads  of  chapters.  It  is  but  the 
style  of  the  officer  who  is  to  possess  the  power. 

The  power  of  appointment  and  removal  are  not  executive 
powers.  Senator  Howard,  3 Trial  of  the  President,  33,  34. 

It  is  that  power,  and  no  other,  which  the  Constitution 
grants  to  him.  Senator  Edmunds,  3 Id.,  83. 

To  appoint  and  to  remove  from  office  are  executive  powers, 
and  conferred  by  this  clause ; but  the  mode  of  appointment 
is  limited  by  future  clauses,  while  this  general  provision 


399 

Jefferson. 


Jackson. 
Van  Buren. 


England. 

Howard. 

Edmunds. 

Davis. 


400 


ELECTORS,  408,  409. 


[Art.  II,  Sec.  1, 


Removal,  leaves  the  power  of  removal  to  the  President  alone.  Sen- 
ator Garrett  Davis,  3 Trial  of  the  President,  163. 

But  the  President  cannot  remove  a judge,  but  the  Senate 
only,  in  the  exercise  of  a judicial  power.  Therefore,  as  to 
judges,  the  limitation  seems  to  be  as  complete  in  the  matter 
of  removal  as  in  that  of  appointments. 


For  what  409.  “ DURING  THE  TERM  OF  FOUR  YEARS.”  The 
term?  term  of  the  President  is  the  period  of  his  actual  service. 

Upon  the  Vice  President  or  another  becoming  President  upon 
any  of  the  contingencies,  the  term  is  his.  Senator  Fowler, 
3 Trial  of  the  President,  196.  And  so  argued  Senator  Trum- 
bull. Id.,  321.  The  clause  does  not  mean  that  the  person 
holding  the  office  shall  not  die,  resign,  or  be  removed  during 
that  period,  but  to  fix  a term  or  limit  during  which  he  may, 
but  beyond  which  he  cannot,  hold  the  office.  Upon  the  hap- 
pening of  either  of  the  contingencies,  the  term  ceases,  so  far 
as  the  late  incumbent  is  concerned.  The  term  of  the  presi- 
dential office  is  four  years,  but  different  persons  may  fill  it 
during  that  period.  Senator  Trumbull,  3 Id.,  322. 


Mode  of  2Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a Number  of  Elec- 
tors, equal  to  the  whole  Number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled 
in  the  Congress : but  no  Senator  or  Representative, 
or  Person  holding  an  Office  of  Trust  or  Profit  under 
the  United  States,  shall  be  appointed  an  Elector. 

409a.  TABLE  SHOWING  THE  “ NUMBER  OF  ELECTORS”  OF  THE 

SEVERAL  STATES  IN  1876. 


1fi7  Alabama 10 

California 6 

Colorada 3 

Connecticut 6 

1876.  Delaware 3 

Florida 4 

Georgia 11 

Illinois 21 

Indiana 15 

Iowa 11 

Kansas 5 

Kentucky 12 

Louisiana 8 

Maine 7 

Maryland 8 

Massachusetts 13 

Michigan 11 

Minnesota 5 

Mississippi 8 


Missouri 15 

Nebraska 3 

New  Hampshire 5 

New  Jersey 9 

New  York ! 35 

Nevada 3 

North  Carolina 10 

Ohio 22 

Oregon 3 

Pennsylvania 29 

Rhode  Island 4 

South  Carolina 7 

Tennessee 12 

Texas 8 

Vermont 5 

Virginia 11 

West  Virginia 5 

Wisconsin 10 

Total 366 


4 


Cl.  1,  2, 1.] 


PRESIDENTIAL  ELECTION,  409. 


401 


It  will  be  seen  that  this  table  includes  Colorado,  which 
possibly  may  not  vote  in  1876.  But  the  public  takes  it  for 
granted  that  if  will.  If  so,  it  will  require  186  electoral  votes 
to  choose. 


[Article  XII. — Amendment. 

1 The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Yice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
the  same  State  with  themselves;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Yice-Pres- 
ident, and  they  shall  make  distinct  lists  of  all  per- 
sons voted  for  as  President,  and  of  all  persons  voted 
for  as  Yice-President,  and  of  the  number  of  votes 
for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Sen- 
ate; the  President  of  the  Senate  shall,  in  presence 
of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates  and  the  votes  shall  then  be  counted ; 
the  person  having  the  greatest  number  of  votes  for 
President  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed ; 
and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  Pres- 
ident the  votes  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote  ; a quorum 
for  this  purpose  shall  consist  of  a member  or  mem- 
bers from  two-thirds  of  the  States,  and  a majority  of 
all  the  States  shall  be  necessary  to  a choice.  And  if 
the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve 


Repeat  the 
whole  rule 
as  to  elect- 
ing and 
making 
known  the 
presiden- 
tial elec- 
tion. 

168. 


402 


No  choice. 


The  high- 
est votes. 


Eligibility. 


How  are 
the  votes 
counted? 


Objection 
of  Mr.  Hoar. 


COUNTING  THE  VOTES,  410.  Art.  II,  Sec.  1, 

upon  them,  before  the  fourth  day  of  March  next  fol- 
lowing, then  the  Vice-President  shall  ^ct  as  Pres- 
ident, as  in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  President. 

2 The  person  having  the  greatest  number  of  votes 
as  Vice-President  shall  be  the  Vice-President,  if  such 
number  be  a majority  of  the  whole  number  of  Elect- 
ors appointed;  and  if  no  person  have  a majority, 
then  from  the  two  highest  numbers  on  the  list  the 
Senate  shall  choose  the  Vice-President;  a quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the 
whole  number  of  Senators,  and  a majority  of  the 
whole  number  shall  be  necessary  to  a choice. 

3 But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States.] 

410,  “The  votes  shale  then  be  counted.  The 
President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Kepresentatives, 
open  all  the  certificates,  and  the  votes  shall 

THEN  BE  COUNTED.” 

The  prevalent  opinion  in  the  earlier  days  of  the  Govern- 
ment was  that  Congress  were  the  mere  witnesses  of  the 
count,  but  the  present  practice  can  best  be  illustrated  by  the 
precedent  of  12th  February,  1873.  At  the  hour  of  one 
o’clock,  after  due  notice  that  the  House  was  ready,  the  Sen- 
ate proceeded  in  a body  to  the  House.  Then  Mr.  Sherman 
acted  as  teller  for  the  Senate,  and  Mr.  Dawes,  Mr.  Beck, 
and  others  as  tellers  for  the  House,  the  Vice  President  pre- 
siding and  the  Speaker  of  the  House  seated  at  his  left  hand. 
The  counting  and  recording  of  the  vote  proceeded  regularly 
until  the  certificate  of  the  vote  of  the  electors  of  Georgia  had 
been  read  by  the  tellers,  when  Mr.  Hoar  put  in  the  following 
written  objection : 

“Mr.  Hoar  objects  that  the  votes  reported  by  the  tellers  as 
having  been  cast  by  the  electors  of  the  State  of  Georgia  for 
Horace  Greeley,  of  New  York,  cannot  lawfully  be  counted, 
because  said  Horace  Greeley,  for  whom  they  appear  to  have 
been  cast,  was  dead  at  the  time  said  electors  assembled  to 
cast  their  votes,  and  was  not  la  person’  within  the  meaning 
of  the  Constitution,  this  being  an  historic  fact  of  which  the 
two  Houses  may  properly  take  notice.” 


Cl.  1-3.]  ELECTORAL  VOTE,  410. 

Some  objections  also  having  been  stated  to  the  vote  of 
Mississippi,  the  Senate,  under  the  22d  joint  rule,  withdrew. 

In  the  Senate  the  part  of  the  joint  rule  bearing  upon  the 
determination  of  the  question  was  read  as  follows  : 

“If,  upon  the  reading  of  any  such  certificate  by  the  tellers, 
any  question  shall  arise  in  regard  to  counting  the  votes  therein 
certified,  the  same  having  been  stated  by  the  presiding  officer, 
the  Senate  shall  thereupon  withdraw,  and  said  question  shall 
be  submitted  to  that  body  for  its  decision;  and  the  Speaker 
of  the  House  of  Representatives  shall,  in  like  manner,  submit 
said  question,  to  the  House  of  Representatives  for  its  decision ; 
and  no  question  shall  be  decided  affirmatively,  and  no  vote 
objected  to  shall  be  counted,  except  by  the  concurrent  votes 
of  the  two  Houses,  which  being  obtained,  the  two  Houses 
shall  immediately  reassemble,  and  the  presiding  officer  shall 
then  announce  the  decision  of  the  question  submitted,  and 
upon  any  such  question  there  shall  be  no  debate  in  either 
House ; and  any  other  question  pertinent  to  the  object  for 
which  the  two  Houses  are  assembled  may  be  submitted  and 
determined  in  like  manner.” 

After  some  amendments  offered  by  Mr.  Conkling,  giving 
the  reasons  for  action,  and  striking  out  the  word  “not,”  on 
motion  of  Mr.  Sherman  a resolution  of  Mr.  Edmonds  was 
passed  in  these  words  : 

“ Resoloed , That  the  electorial  vote  of  Georgia  cast  for 
Horace  Greeley  be  counted.” 

The  House  retained  the  word  “not”  in  its  resolution;  so 
the  two  Houses  disagreed  as  to  whether  electoral  votes  cast 
for  a candidate  who  died  after  a popular  election,  or,  more 
properly,  perhaps,  they  disagreed  as  to  whether  the  Houses 
had  the  power  to  determine  the  question.  But  the  result  of 
the  disagreement  under  the  rule  was  that  the  three  votes  cast 
for  Mr.  Greeley  were  not  counted.  The  Vice  President 
stated  that  by  a precedent  four  years  ago  it  was  not  neces- 
sary that  the  resolution  should  be  concurrent,  but  the  de- 
cisions must  accord. 

“Mr.  Trumbull  objects  to  counting  the  votes  cast  for  Presi- 
dent and  Vice  President  by  the  electors  in  the  State  of  Mis- 
sissippi, for  the  reason  that  it  does  not  appear  from  the 
certificate  of  said  electors  that  they  voted  by  ballot.” 

This  objection  was  not  urged  by  Mr.  Trumbull,  and  the 
votes  of  Mississippi  were  counted. 

The  vote  of  Arkansas  was  not  counted,  because  the  certifi- 
cate was  not  under  the  seal  of  the  State,  but  the  seal  of 
the  Secretary  of  State.  The  two  Houses  failing  to  concur, 
the  vote  of  this  State  was  not  counted.  From  Louisiana 
there  were  two  sets  of  returns : one  signed  by  the  Governor 
and  regular  upon  its  face,  the  other  by  a returning  board. 
But  there  had  been  a report  from  a committee  of  the  Senate, 
showing  that  the  Grant  board  certified  without  returns,  and 
the  other  without  a legal  count.  Both  Houses  resolved 


403 


Mississippi. 


What  is  the 
22d  rule? 


Difference 
between 
the  Senate 
and  House. 


Mississippi. 


Arkansas. 


404 


VICE-PRESIDENT,  410,  411.  [Art.  II,  Sec.  1, 


Result. 


What  are 
the  qualifi- 
cations for 
President  ? 
169, 170. 


Vacancy  of 
presiden- 
tial chair. 


What  de- 
volves upon 
the  Vice- 
President? 
172. 

318. 


against  counting  Louisiana.  So  it  resulted  that  three  votes 
of  Georgia  were  not  counted,  and  all  the  votes  of  Arkansas 
and  Louisiana  were  not  counted. 

The  precedents  are — 1.  That  under  the  joint  rule  the  two 
Houses  may  judge  as  to  the  existence  of  the  person  voted 
for,  which  goes  to  the  qualifications.  2.  They  may  reject 
votes  for  irregularity  of  the  proceedings  and  certificates  from 
the  States. 

The  result  was  that  of  the  366  electoral  votes,  Grant  and 
Wilson  got  286,  and  all  others  63.  The  Vice  President 
declared  Grant  and  Wilson  elected  President  and  Vice 
President. 

4No  Person  except  a natural  born  Citizen,  or  a 
Citizen  of  the  United  States,  at  the  time  of  the 
Adoption  of  this  Constitution,  shall  be  eligible  to  the 
Office  of  President;  neither  shall  any  Person  be 
eligible  to  that  Office  who  shall  not  have  attained  to 
the  Age  of  thirty-five  Years,  and  been  fourteen 
Years  a Resident  within  the  United  States. 

5 In  Case  of  the  Removal  of  the  President  from 
Office,  or  of  his  Death,  Resignation,  or  Inability  to 
discharge  the  Powers  and  Duties  of  the  said  Office, 
the  same  shall  devolve  on  the  Vice  President,  and 
the  Congress  may  by  Law  provide  for  the  Case  of 
Removal,  Death,  Resignation,  or  Inability,  both  of 
the  President  and  Yice  President,  declaring  what 
Officer  shall  then  act  as  President,  and  such  Officer 
shall  act  accordingly,  until  the  Disability  be  re- 
moved, or  a President  shall  be  elected, 

411.  “In  case  of  the  removal  of  the  President 

FROM  OFFICE,  OR  OF  HIS  DEATH,  RESIGNATION,  OR  INA- 
BILITY TO  DISCHARGE  THE  POWERS  AND  DUTIES  OF  THE 
SAID  OFFICE,  THE  SAME  SHALL  DEVOLVE  UPON  THE . VICE 

President.”  * * * “ What  shall  devolve  upon 

the  Vice  President  ? The  powers  and  duties  of  the  office 
simply,  or  the  office  itself?  Some  light  is  thrown  upon  this 
question  by  the  remainder  of  the  same  clause,  making  pro- 
vision for  the  death,  &c.,  of  both  the  President  and  Vice 
President,  enabling  Congress  to  provide  by  law  for  such  a 
contingency,  as  to  declare  4 what  officer  shall  act  as  Presi- 
dent, ’ and  that  4 such  officer  shall  act  accordingly  ’ — a very 
striking  change  of  phraseology.  The  question  has,  however, 


Cl.  3-6.  j PRECEDENTS,  411-413. 

in  two  previous  instances  received  a practical  construction. 
In  the  case  of  Mr.  Tyler,  and  again  in  that  of  Mr.  Fillmore, 
the  Vice  President  took  the  oath  as  President,  assumed  the 
name  and  designation,  and  was  recognized  as  constitution- 
ally President  of  the  United  States,  with  the  universal  assent 
and  consent  of  the  nation.  Each  was  fully  recognized  and 
acknowledged  to  be  President,  as  fully  and  completely,  and 
to  all  intents,  as  if  elected  to  that  office.”  Senator  Fessenden, 

3 Johnson’s  Trial,  20. 

The  first  clause  provides  for  the  “term”  of  four  years,  and 
for  a like  “ term  ” for  the  Vice  President.  It  is  the  “duties” 
or  “office,”  not  the  “ term,”  which  devolves  upon  the  Vice 
President.  He  can  only  serve  for  the  unexpired  term.  Sen- 
ator Edmonds,  3 Trial  of  the  President,  87. 

412.  “And  the  Congress  may  by  daw  provide,” 
&c.  This  and  the  power  of  impeachment  are  the  only  modes 
of  getting  rid  of  officers  whose  inability  or  insanity , or  other- 
wise renders  them  unfit  to  hold  office,  and  whose  every 
official  act  will  necessarily  be  a misdemeanor.  Mr.  Law- 
rence, 1 Trial  of  the  President,  135.  But  the  editor  thinks 
that  the  clause  relates  to  the  power  to  provide  for  the  con- 
tingency which  may  befall  both  President  and  Vice  Presi- 
dent, and  not  the  getting  rid  of  either. 

6 The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a Compensation,  which  shall  neither  be 
encreased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

413.  “At  stated  times:”  That  is,  at  the  times  fixed 
by  law  for  payment,  which  has  been  quarterly. 

“Compensation,  which  shall  neither  be  in- 
creased NOR  DIMINISHED  DURING  THE  PERIOD  FOR 
which  he  shall  have  been  elected.”  It  will  be  ob- 
served that  George  Washington  was  necessarily  elected  before 
any  compensation  had  been  fixed,  because  it  was  before  the 
Government  had  been  organized.  And  he  was  inaugurated 

4 March,  1789,  and  his  compensation  was  not  fixed  until  18 
Feb.,  1793,  which  was  after  he  had  been  a second  time  elected , 
but  before  he  had  renewed  his  oath  of  office.  But  as  nothing 
had  before  been  prescribed,  this  was  neither  an  increase  nor 
diminution,  and  therefore  the  words  period  and  elected  could 
have  no  force.  But  Ulysses  S.  Grant  was  elected  on  the  first 
Tuesday  in  November,  1868,  inaugurated  4 March,  1869; 
again  elected  on  the  first  Tuesday  in  November,  1872 ; his 


405 


Remarks. 


Power  of 
Congress? 


What  of  the 
President’s 
compensa- 
tion? 

173. 


Give  the 
precedents. 


Washing- 

ton. 


Grant. 


406 


INSTALLATION,  413,  414.  [Art.  II,  Sec.  1,  2, 


Election 

declared. 


Sumner. 


Install- 

ment. 


354. 


Oath. 
Page  170, 
note  174. 


second  election  declared  on  the  first  Wednesday  in  Decem- 
ber of  the  same  year,  and  on  3 March,  1873,  Congress  in- 
creased his.  compensation  from  twenty-five  to  fifty  thousand 
dollars  per  annum.  This  was  in  an  amendment  to  the  appro- 
priation bill,  in  which  was  also  increased  the  salaries  of 
members  of  Congress,  and,  as  to  them,  it  was  declared  that 
the  law  should  operate  retroactively  as  to  the  compensation 
of  that  Congress.  (17  Stat.,  486.)  The  President’s  salary 
only  took  effect  during  his  second  “term,”  or  second  ‘‘pe- 
riod” for  which  he  had  “been  elected.”  This  is  a congres- 
sional precedent  for  the  proposition  that  “ period' ’ in  this 
clause  is  synonymous  with  “term”  in  clause  1 of  the  same 
article,  and  after  the  election  has  been  declared  the  same  per- 
son re-elected  may  have  his  compensation  increased  for  the 
next  period  of  his  office.  This  limits  “shall  have  been 
elected”  to  the  then  term  of  service,  and  it  impairs,  if 
it  does  not  destroy,  the  accepted  definition  of  the  word  period . 

It  was  the  opinion  of  the  Hon.  Charles  Sumner  that  all 
such  increase  of  salary  ought  to  be  fixed  before  the  popular 
election  of  a future  incumbent,  because  a leader  is  never  so 
powerful  as  in  the  hour  of  his  first  triumph  before  the  people. 
Minds  are  too  prone  to  look  at  the  mere  inauguration  of  the 
President  as  the  whole  matter  of  the  election.  But  the  pop- 
ular speech  to  the  assembled  nation,  the  marching  under 
arches  to  martial  music,  the  firing  of  cannon,  the  regal  ball, 
and  the  mad  prostration  for  office,  are  things  not  contem- 
plated by  the  Constitution.  The  only  thing  of  substance  is 
the  oath  of  office,  which  might  be  administered  by  any  judi- 
cial officer  elsewhere  as  well  as  at  Washington. 

In  the  case  of  the  increase  of  President  Grant’s  salary  the 
popular  indignation  wTas  so  furious  at  the  members  of  Con- 
gress who  doubled  and  made  retroactive  the  increase  of  their 
own  salaries,  that  the  irregularity  of  augmenting  the  Pres- 
ident’s was  little  noticed.  The  Senate  has  now  passed  a bill 
to  return  to  twenty-five  thousand  dollars  per  annum. 

’Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation : 

“ I do  solemnly  swear  (or  affirm)  that  I will  faith- 
fully execute  the  Office  of  President  of  the  United 
States,  and  will  to  the  best  of  my  Ability,  preserve, 
protect  and  defend  the  Constitution  of  the  United 
States.” 

414.  The  oath  is  to  be  taken  in  connection  with  the  duty 
to  take  care  that  the  laws  be  faithfully  executed.  Both  need 
only  be  done  in  good  faith.  Curtis  in  defense  of  the  Presi- 
dent, Trial  of  the  President,  386. 


189. 


Cl.  7,1.] 


PRECEDENTS,  415,416. 


407 


Section.  2.  1 The  President  shall  be  Commander-in-  tue^ 
Chief  of  the  Army  and  Navy  of  the  United  States,  th^Presi- 

**  **  dent  ? 

and  of  the  Militia  of  the  several  States,  when  called  175,’m. 
into  the  actual  Service  of  the  United  States;  he 
may  require  the  Opinion,  in  writing,  of  the  princi- 
pal Officer  in  each  of  the  Executive  Departments, 
upon  any  Subject  relating  to  the  Duties  of  their 
respective  Offices,  and  he  shall  have  Power  to  grant 
.Reprieves  and  Pardons  for  Offenses  against  the 
United  States,  except  in  Cases  of  Impeachment. 

415.  “COMMANDER-IN-CHIEF.”  The  commission  of  Howcom- 
General  Washington  of  17  June,  1775,  was  by  the  delegates  missloned? 
of  all  the  United  Colonies,  naming  them,  to  George  Wash- 
ington, to  be  General  and  Commander-in-chief  of  the 

army  of  the  United  Colonies,  &c.,  and  was  to  be  held  until 
revoked  by  Congress.  (Journal  of  1774-1775,  pp.  121,  122.) 

This  is  the  only  form  of  commission  ever  prescribed  by  law 
in  this  country  to  a military  officer,  and  in  drafting  commis- 
sions under  the  Constitution  of  the  United  States  “the 
pleasure  of  the  President”  was  inserted  instead  of  “the 
pleasure  of  Congress.”  Manager  Butler,  1 Trial  of  the 
President,  718,  719. 

But  it  is  to  be  observed  that  under  the  articles  of  confed- 
eration there  was  neither  President  nor  judiciary,  nor  was 
there  when  Washington  was  commissioned  any  confedera- 
tion— only  a Congress,  under  the  name  of  the  United  Col- 
onies. 

416.  “He  MAY  TAKE  THE  OPINION  IN  WRITING  OF  Howdoes 
THE  PRINCIPAL  OFFICER  OF  EACH  OF  THE  EXECUTIVE  h®  ^ke  *he 
DEPARTMENTS  UPON  ANY  SUBJECT  RELATING  TO  THEIR  £i«Cabi£ct? 

respective  duties.”  Not  as  to  the  duties  of  other  heads 
of  departments,  but  only  to  the  duties  of  the  President  and 
the  department  over  which  he  presides.  Curtis’  speech  in 
defense  of  the  President,  1 Trial  of  the  President,  p.  380. 

Manager  Butler  took  Mr.  Jefferson’s  view.  The  heads  of 
department  were  never  expected  to  be  a cabinet.  The 
advice  was  intended  to  be  in  writing,  and  to  remain  a 
record.  1 Trial  of  the  President,  p.  667. 

The  taking  the  opinion  in  writing  was  a mere  redundancy 
of  plan,  as  the  right  for  which  it  provides  would  result  from 
the  office.  (Federalist,  73.)  Curtis  in  defense  of  the  Pres- 
ident, vol.  1,  p.  669. 

The  practice  of  cabinet  consultations  as  an  advisory  body  Different 
originated  with  President  Washington,  and  was  continued  precedents, 
by  John  Adams.  With  these  administrations  a consultation 

31 


408 


PARDONS,  416,  417. 


[Art.  II,  Sec.  2, 


Jefferson,  was  held,  after  which  the  President  decided.  Jefferson’s 
practice  was  to  consult  and  take  a vote,  counting  himself  one 
of  that  vote.  This  was  for  the  purpose  of  unanimity,  for  the 
President  always  understood  that  he  had  the  power  to  over- 
rule the  result  if  he  saw  proper  to  exert  it.  2 Curtis’  His- 
tory of  the  Constitution,  409  ; Curtis  in  defense  of  the  Pres- 
ident, 1 Johnson’s  Trial,  670. 

After  full  discussion  it  was  decided  by  Chief  Justice  Chase 
and  a vote  of  the  Senate  that  the  President  might  prove 
what  occurred  in  cabinet  counsel  on  the  21st  of  February, 
1868,  after  the  President  had  appointed  Thomas  Secretary 
of  War  ad  interim . 1 Johnson’s  Trial,  666-674. 

Evidence.  The  President’s  counsel  made  the  following  offer:  “We 
offer  to  prove  that  the  President,  at  a meeting  of  the  cabinet 
while  the  bill  was  before  the  President  for  his  approval,  laid 
before  the  cabinet  the  tenure-of-civil-office  bill  for  their  con- 
sideration and  advice  to  the  President  respecting  his  approval 
of  the  bill ; and  thereupon  the  members  of  the  cabinet  then 
present  gave  their  advice  to  the  President  that  the  bill  was 
unconstitutional,  and  should  be  returned  to  Congress  with 
his  objections,  and  that  the  duty  of  preparing  a message, 
setting  forth  the  objections  to  the  constitutionality  of  the 
bill,  was  devolved  on  Mr.  Seward  and  Mr.  Stanton,  to  be 
followed  by  proof  as  to  what  was  done  by  the  President  and 
cabinet  up  to  the  time  of  sending  in  the  message.”  This  was 
objected  to  by  the  managers.  After  a very  able  discussion, 
in  which  the  executive  power  was  thoroughly  examined  and 
questions  as  to  the  effect  of  such  advice  were  asked  by  Sen- 
ators, it  was  ruled  that  the  evidence  was  inadmissible.  1 
Johnson’s  Trial,  676-693. 

Mi*.  Curtis  explained  that  the  object  was  to  show  that  the 
President  was  guilty  of  improper  intent.  Id.,  691,  692.  The 
offer  to  prove  that  the  cabinet  advised  before  the  veto  that 
the  civil  tenure  bill  did  not  apply  to  the  cabinet  officers  ap- 
pointed by  Mr.  Lincoln,  and  that  Stanton  concurred  in  this 
view,  was  also  voted  down.  Id.,  693-697. 

So  the  consultations  of  the  cabinet,  in  which  a desire  was 
expressed  to  get  up  a judicial  case,  was  rejected.  Id.,  698, 
700. 

State  the  411.  TO  GRANT  REPRIEVES  AND  PARDONS.  President 
power  as  to  Washington,  by  proclamation,  pardoned  the  whisky  insur- 
Cox.°nS*  rectionists  of  Western  Pennsylvania.  12  Sparks’  Washing- 

177.  ton,  135.  And  President  Adams  pardoned  the  Northampton 

insurrectionists.  9 Adams’  Works,  168,  169. 

Charles  II  issued  a general  proclamation  of  pardon  from 
Breda,  reserving  to  Parliament  the  right  to  make  exceptions 
at  its  discretion.  Hallam’s  Const.  History  of  Eng.,  (Harper’s 
Ed.  of  1847,)  p.  406;  and  see  5 Hume’s  History  of  Eng.,  p. 
444,  (London  Ed.  of  1848.)  But  general  pardons  are  com- 
monly made  by  act  of  Parliament.  2 Hawk.  Pleas  of  Crown, 


Cl.  1.] 


PARDONS,  417. 


409 


(London  Ed.  of  1726,)  p.  384.  President  Johnson,  in  1868, 
issued  a general  proclamation  of  full  pardon  and  amnesty. 
The  effect  of  such  a proclamation  is  established  by  precedent 
and  authority,  following  the  precedents  set  by  Washington, 
10  July  1795;  John  Adams,  2 May,  1800;  James  Madison, 
16  Feb.,  1815;  Mr.  Lincoln,  8 I)ec.,  1863,  and  of  the  same 
President  26  March,  1864,  and  of  Johnson’s  proclamation  7 
Sept.,  1867.  He  declared  that  all  the  beneficiaries  were  re- 
stored to  all  their  rights,  privileges  and  immunities  under 
the  Constitution. 

In  the  Armstrong  Foundery  case  (6  Wall.,  767)  it  was  held 
that  the  pardon  relieved  the  property  and  person  of  all  pen- 
alties under  a special  law  of  the  United  States.  Indeed  there 
is  no  law  so  well  settled  by  the  courts  as  that  which  concerns 
the  pardon  of  rebellious  citizens.  All  rights  are  restored. 
The  citizen  is  in  the  same  condition  as  if  he  had  never  been 
rebellious.  He  is  a novus  homo . 

The  potentiality  of  a pardon  is  not  fully  understood  even 
by  lawyers.  In  the  Federal.  State,  and  English  courts  there 
is  but  one  decision.  In  the  case  of  The  United  States  v. 
Wilson  (7  Pet.,  150)  Chief  Justice  Marshall,  speaking  of  the 
pardoning  power,  said : 

“As  this  power  had  been  exercised  from  time  immemo- 
rial by  the  Executive  of  that  nation,  whose  language  is  our 
language,  and  to  whose  judicial  institutions  ours  bear  a 
close  resemblance,  we  adopt  their  principles  respecting  the 
operation  and  effect  of  a pardon,  and  look  into  their  books 
for  the  rules  prescribing  the  manner  in  which  it  is  to  be  used 
by  the  person  who  would  avail  himself  of  it.” 

In  Sharswood’s  Blackstone  (vol.  2,  p.  402)  it  is  said: 

“The  effect  of  a pardon  is  to  make  the  offender  a new 
man ; to  acquit  him  of  all  corporal  penalties  and  forfeitures 
annexed  to  that  offense  for  which  he  obtains  a pardon ; it 
gives  him  a new  credit  and  capacity ; and  the  pardon  of  trea- 
son#or  felony,  even  after  conviction  or  attainder,  will  enable 
a man  to  have  an  action  of  slander  for  calling  him  a traitor 
or  felon.” 

Bacon’s  Abridgement  says : 

“The  stroke  being  pardoned,  the  effects  of  it  are  conse- 
quently pardoned.” 

And  referring  to  Cole’s  case,  in  the  old  and  accurate  re- 
porter, Plowden,  (p.  401,)  Bacon  says  also,  (pp.  415,  416, 
notes  a and  b :) 

“The pardon  removes  all  punishment  and  legal  disability.” 

See,  too,  Gilbert  on  Ev.,  128  ; Brown  v.  Brashaw,  2 Bulst., 
154;  Wicks  v.  Smallbrooke,  1 Siderfin,  52. 

In  Bishop’s  Cr.  Law  it  is  said,  (sec.  713  :) 

“The  effect  of  a full  pardon  is  to  absolve  the  party  from 
all  the  consequences  of  his  crime  and  of  his  conviction  there- 
for, direct  and  collateral ; it  frees  him  from  the  punishment, 
whether  of  imprisonment,  pecuniary  penalty,  or  whatever 
else  the  law  has  provided.” 


Johnson. 


Relief. 


Cox. 


The  effect 


410 


THE  REBELLION,  417,  418.  [Art.  II,  Sec. 2, 


PSardotfc 


What  aro 
the  cases 
growing 
out  of  the 
rebellion  ? 


In  the  Pennsylvania  case  of  Cope  Commonwealth  (28 
Penn.  State  R.,  297)  the  court  say  : 

44  We  are  satisfied,  however,  that  although  the  remission 
of  the  fine  imposed  would  not  discharge  the  offender  from 
all  the  conseqences  of  his  guilt,  a full  pardon  of  the  offense 
would.” 

In  the  Massachusetts  case  of  Perkins  v.  Stevens  (24  Pick., 
280)  it  is  said  : 

4 4 It  is  only  a full  pardon  of  the  offense  which  can  wipe 
away  the  infamy  of  the  conviction  and  restore  the  convict  to 
his  civil  rights.” 

In  ex  parte  Secombe  (19  How.,  9)  the  Supreme  Court  say, 
(by  Chief  Justice  Taney :) 

4 4 It  rests  exclusively  with  the  court  to  determine  who  is 
qualified  to  become  one  of  its  officers  as  an  attorney  and 
counselor,  and  for  what  cause  he  ought  to  be  removed.  The 
power,  however,  is  not  an  arbitrary  and  despotic  one,  to  be 
exercised  at  the  pleasure  of  the  court,  or  from  passion,  preju- 
dice, or  personal  hostility ; but  it  is  the  duty  of  the  court  to 
exercise  and  regulate  it  by  sound  and  just  judicial  discre- 
tion, whereby  the  rights  and  independence  of  the  bar  may 
be  as  scrupulously  guarded  and  maintained  by  the  court  as 
the  rights  and  dignity  of  the  court  itself.”  Speech  of  S.  S. 
Cox  upon  Butler’s  amnesty  bill,  Globe  of  16  Dec.,  1870. 

The  Romans,  too,  had  their  amnesty,  which  they  called 
abolitio , and  which  is  thus  defined  in  their  law:  44 Abolitio 
est  deletio , oblivio , vel  extinctio  accasationis .” 

In  the  case  of  Garland  (4  Wall.,  380)  we  held  that  in  the 
eye  of  the  law  the  effect  of  a pardon  is  that  the  offender  is  as 
innocent  as  if  he  had  never  committed  the  offense ; and  in 
the  case  of  Armstrong’s  Founderv  (6  Wall.,  769)  we  held 
that  the  general  pardon  granted  to  him  relieved  him  from  a 
penalt3r  which  he  had  incurred  to  the  United  States.  United 
States  v.  Padleford,  9 How.,  542,  543. 

• 

418,  The  Rebellion.  When  in  Padleford’s  Case,  (9 
Wall.,  542,  543,)  a claimant  under  the  captured  and  aban- 
doned. property  act,  in  the  court  of  claims,  asked  for  a restora- 
tion of  the  proceeds  of  his  property,  and  showed  that  he  had 
taken  the  oath  prescribed  hy  the  proclamation  of  President 
Lincoln  of  8 Dec.,  1863,  (Paschal’s  Dig.,  art.  7221,)  and  had 
since  then  kept  the  oath  inviolate,  and  was,  by  force  of  the 
proclamation,  pardoned,  this  court  held  that,  after  the  par- 
don thus  granted,  no  offense  connected  with  the  rebellion 
could  be  imputed  to  him ; that  the  law  made  the  proof  of 
pardon  a complete  substitute  for  proof  that  he  had  given  no 
aid  or  comfort  to  the  rebellion.  In  Klein’s  Case,  (13  Wall., 
128,  143,)  an  act  of  Congress  (the  Drake  act)  designed  to 
deny  to  the  pardon  of  the  President  the  effect  and  operation 
which  the  court  had  thus  adjudged  to  it  was  held  to  be  uncon- 
stitutional and  void.  In  Mrs.  Armstrong’s  Case,  (13  Wall., 


Cl.  1.] 


THE  REBELLION,  418. 


411 


154,)  the  court  held  that  the  proclamation  of  pardon  and  am-  Rebellion, 
nesty  issued  by  the  President  on  25  Dec.,  1868,  entitled  her 
to  the  proceeds  of  her  captured  and  abandoned  property  in 
the  treasury,  without  proof  that  she  never  gave  such  aid  and 
comfort ; that  the  proclamation  granting  pardon  uncondition- 
ally, and  without  reservation,  was  a public  act  of  which  all 
courts  of  the  United  States  were  bound  to  take  notice,  and 
to  which  all  courts  were  bound  to  give  effect.  And  such  was 
the  principle  in  Pargoud’s  Case,  13  Wall.,  156.  The  pardon 
of  the  President,  whether  granted  by  special  letters  or  by 
general  proclamation,  relieves  claimants  of  the  proceeds  of 
captured  and  abandoned  property  from  the  consequences  of 
participation  in  the  rebellion,  and  from  the  necessity  of  es- 
tablishing their  loyalty  in  order  to  prosecute  their  claims. 

This  result  follows,  whether  we  regard  the  pardon  as  effacing 
the  offense,  blotting  it  out  in  the  language  of  the  cases,  as  Effect  of 
though  it  had  never  existed,  or  regard  persons  pardoned  as  pardoh. 
necessarily  excepted  from  the  general  language  of  the  act 
which  requires  claimants  to  make  proof  of  their  adhesion  dur- 
ing the  rebellion  to  the  United  States.  Carlisle  v.  The 
United  States,  13  Wall.,  152.  The  pardon  by  the  proclama- 
tion of  25  Dec.  1863,  (Paschal’s' Dig.,  art.  7222,)  extends 
to  aliens  resident  in  the  United  States,  as  well  as  to  citizens. 

“The  rights  of  sovereignty,”  says  Wildman,  in  his  Instit- 
utes on  International  Law,  (p.  40,)  “extend  to  all  persons 
and  things  not  privileged  that  are  within  the  territory. 

They  extend  to  all  strangers  therein,  not  only  to  those  who 
are  naturalized,  and  to  those  who  are  domiciled  therein,  hav- 
ing taken  up  their  abode  with  the  intention  of  permanent 
residence,  but  also  to  those  whose  residence  is  transitory. 

All  strangers  are  under  the  protection  of  the  sovereign  while 
they  are  within  his  territories,  and  owe  a temporary  alle- 
giance in  return  for  that  protection.”  The  same  principle 
more  extended.  (1  Webster’s  Works,  2,  sec.  4 ; 6 Webster’s 
Works,  526 ; East’s  Crown  Law,  chap.  10 ; Foster’s  Discourse 
upon  High  Trea  son,  §2,  p.  185.)  Carlisle  v.  The  United  States, 

16  Wall.,  154, 155.  The  act  of  17  July,  1862,  which  provided 
for  the  confiscation  of  the  property  of  the  rebels,  (12  U.  S.  St.  at 
Large,  820,)  authorized  the  President  to  extend  pardons. 

This  wras  a suggestion  rather  than  an  authority.  But  on  8 
Dec.,  1863,  (13  U.  S.  St.  at  Large,  737,)  the  President  offered 
a full  pardon,  &c.  But,  in  his  annual  message,  he  said,  “ the 
Constitution  authorizes  the  executive  to  grant  or  withhold 
pardon  at  his  own  absolute  discretion.”  And  this  court  has 
said,  u the  President’s  power  of  pardon  is  not  subject  to  leg- 
islation.” “ Congress  can  neither  limit  the  effect  of  his  par- 
don nor  exclude  from  its  exercise  any  class  of  offenders.”  (14 
Jan.,  1867.)  Therefore  the  repeal  of  the  act  of  14  Dec.,  1863, 
by  the  act  of  21  Jan.,  1867,  did  not  alter  the  operation  of 
pardons.  The  United  States  v.  Klein,  13  Wall.,  141-143. 


412 


CONFISCATED  PROPERTY,  419.  [Art.  II,  Sec.  2, 


Drake. 


Where 
property 
nad  been 
confiscat- 
ed. 


State  his 
power  as 
treaties 
and 

appoint- 

ments. 


419.  The  Drake  amendment  of  1870,  which  sought  to 
control  the  judgments  of  the  court  in  cotton  cases,  and  to 
deny  the  constitutional  effect  to  the  President’s  pardon,  vio- 
lated the  rights  of  both  the  other  departments  of  the  Govern- 
ment, and  it  was  unconstitutional.  The  United  States  v. 
Klein,  13  Wall.,  144-146;  Carroll  v.  The  United  States,  13 
Wall.,  150,  152. 

Upon  confiscated  property.  Conceding  that  am- 
nesty did  restore  what  the  United  States  held  when  the 
proclamation  was  issued,  it  could  not  restore  what  the  United 
States  had  ceased  to  hold.  It  could  not  give  back  the  prop- 
erty which  had  been  sold,  or  any  interest  in  it,  either  in  pos- 
session or  expectancy.  (Semmes  v.  United  States,  U.  S.  Reps. 
S.  C.,  1 Otto,  000.)  Besides,  the  proclamation  of  amnesty 
was  not  made  until  December  25, 1868.  Wallach  v.  Van  Ris- 
wick,  (Oct.  T.,  1875,)  1 Otto,  000. 

“But  the  opinion  which  gives  to  the  judges  the  right  to 
decide  what  laws  are  constitutional  and  what  not,  not  only 
for  themselves  in  their  own  sphere  of  action,  but  for  the 
legislature  and  executive  also,  in  their  spheres,  would  make 
the  j udiciary  a despotic  branch.”  Jefferson’s  letter  to  Mr. 
Adams.  See  Paschal’s  letter  to  President  Grant  of  4 July, 
1870,  ante , p.  00. 

This  theory  was  denied  by  the  managers  in  Johnson’s 
trial,  and  it  was  insisted  that  after  a law  has  been  passed 
in  due  form  the  President  has  no  right  to  question  its  consti- 
tutionality, and  for  that  reason  to  refuse  to  execute  it.  And 
that  if  he  be  impeached  for  refusing  to  execute  the  law,  the 
President  cannot  be  heard  to  urge  that  the  law  is  unconsti- 
tutional, nor  could  Senators  on  that  account  acquit  him. 
At  the  same  time  it  was  conceded  that  the  courts  might 
annul  a law  by  declaring  it  unconstitutional.  Manager  Bout- 
well,  70-73. 

2 He  shall  have  Power,  by  and  with  the  Advice 
and  Consent  of  the  Senate,  to  make  Treaties,  pro- 
vided two-thirds  of  the  Senators  present  concur ; and 
he  shall  nominate,  and  by  and  with  the  Advice  and 
Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the 
supreme  Court,  and  all  other  Officers  of  the  United 
States,  whose  Appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  Law : 
but  the  Congress  may  by  Law  vest  the  Appointment 
of  such  inferior  Officers,  as  they  think  proper,  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments. 


HEADS  OF  DEPARTMENTS,  420^422. 


413 


Cl.  2/ 


420.  u And  he  shall  nominate,  and  by  and  with 

THE  ADVICE  AND  CONSENT  OF  THE  SENATE  SHALL  AP- 
POINT,” &C.  The  President  has  only  that  power  of  naming 
and  commissioning  incumbents.  The  functions  to  be  per- 
formed, the  modes  and  manner  of  performing  them,  the 
duration  of  the  term  of  tenure,  all  the  duties  and  liabilities 
belonging  to  the  office,  are  created  and  defined  by  the  legis- 
lative power  solely.  The  mode,  the  agencies,  the  instru- 
mentalities of  carrying  into  effect  the  law,  are  but  a part  of 
the  law  itself.  Senator  Howard,  3 Trial  of  the  President,  36. 

The  commission  is  not  necessarily  the  appointment,  al- 
though conclusive  evidence  of  the  fact.  (United  States  v.  Le 
Baron,  19  How.,  76.)  Manager  Logan,  2 111.,  28. 

421. “F0R  AND  DURING  THE  TIME  ESTABLISHED  BY 
LAW.”  For  a list  of  the  officers  not  enumerated  in  this  sec- 
tion but  established  by  every  and  what  statute  giving  the 
dates  of  acts  creating  the  office,  names  or  titles  of  the  office, 
for  definite  terms,  definite  unless  sooner  removed,  terms  in- 
definite and  not  expressly  during  pleasure,  with  remarks  of 
discontinuances,  &c.,  see  1 Trial  of  the  President,  548-554. 

For  a list  of  the  various  officers  affected  by  the  tenure  of 
office  law,  being,  in  fact,  a pretty  full  list  if  all  the  federal 
officers  and  their  salaries,  see  Id.,  729-736.  A removal  from 
office  may  either  be  express — that  is,  by  notification  by  order 
of  the  President  of  the  United  States  that  an  officer  is  re- 
moved— or  implied,  by  the  appointment  of  another  person 
to  the  same  office.  But  in  either  case  the  removal  is  not 
completely  effected  till  notice  is  actually  received  by  the  per- 
son removed.  Bowerbank  v.  Morris,  1 Wall.  C.  C.  R.,  125, 
129. 

A nomination,  confirmation,  commission,  delivery  of  com- 
mission, acceptance  by  the  appointee,  notice  to  the  officer 
removed,  are  all  necessary  to  a complete  removal.  Bower- 
bank  v.  Morris,  1 Wall.  C.  C.  R.,  129,  130. 

4 

422.  “Heads  of  Departments.”  The  removal  of 
heads  of  departments  during  the  sessions  of  the  Senate  was 
one — Timothy  Pickering,  Secretary  of  State,  by  John  Adams, 
May  13,  1800. 

‘List  of  appointments  of  heads  of  departments  made  by  the 
President  at  any  time  during  the  session  of  the  Senate. 

Timothy  Pickering,  Postmaster  General,  June  1,  1794. 

Samuel  L.  Southard,  Acting  Secretary  of  the  Treasury, 
January  26,  1829. 

Asbury  Dickins,  Acting  Secretary  of  the  Treasury,  March 
17,  1832. 

John  Robb,  Acting  Secretary  of  War,  June  8,  1832,  and 
July  16,  1832. 


What  of 
appoint- 
ments? 
178, 184. 


For  how 
long? 


Give  list  of 
appoint- 
ments. 


414 


APPOINTMENTS,  422. 


[Art.  II,  Sec.  2, 


McClintock  Young,  Acting  Secretary  of  the  Treasury, 
June  25,  1834. 

Mahlon  Dickerson,  Acting  Secretary  of  War,  January  19, 
1835. 

C.  A.  Harris,  Acting  Secretary  of  War,  April  29,  1836. 

Asbury  Dickins,  Acting  Secretary  of  State,  May  19,  1836. 

C.  A.  Harris,  Acting  Secretary  of  War,  May  27,  1836. 

McClintock  Young,  Acting  Secretary  of  the  Treasury,  May 
14,  1842,  and  June  30,  1842,  and  March  1,  1843. 

John  Kelson,  Acting  Secretary  of  State  ad  interim , Feb- 
ruary 29,  1844. 

McClintock  Young,  Acting  Secretary  of  the  Treasury,  May 
2,  1844. 

Mcholas  P.  Trist,  Acting  Secretary  of  State,  March  31, 
1846. 

McClintock  Young,  Acting  Secretary  of  the  Treasury, 
December  9,  1847. 

John  Appleton,  Acting  Secretary  of  State,  April  10,  1848. 

Archibald  Campbell,  Acting  Secretary  of  War,  May  26, 
1848. 

John  McGinnis,  Acting  Secretary  of  the  Treasury,  June 
20,  1850. 

Winfield  Scott,  Acting  Secretary  of  War  ad  interim , July 
23,  1850. 

William  S.  Derrick,  Acting  Secretary  of  State,  December 

23,  1850,  and  February  20,  1852. 

William  L.  Hodge,  Acting  Secretary  of  the  Treasury,  Feb- 
ruary  21,  1852. 

William  Hunter,  Acting  Secretary  of  State,  March  19, 1852. 

William  L.  Hodge,  Acting  Secretary  of  the  Treasury,  April 
26,  1852. 

William  Hunter,  Acting  Secretary  of  State,  May  1,  1852. 

William  L.  Hodge,  Acting  Secretary  of  the  Treasury,  May 

24,  1852,  and  June  10,  1852. 

William  Hunter,  Acting  Secretary  of  State,  July  6,  1852. 

John  P.  Kennedy,  Acting  Secretary  of  War,  August  19, 
1852. 

William  L.  Hodge,  Acting  Secretary  of  the  Treasury,  Au- 
gust 27, 1852,  and  December  31,  1852,  and  January  15,  1853. 

William  Hunter,  Acting  Secretary  of  State,  March  3,  1853. 

Archibald  Campbell,  Acting  Secretary  of  War,  January  19, 
1857. 

Samuel  Cooper,  Acting  Secretary  of  War,  March  3,  1857. 

Philip  Clayton,  Acting  Secretary  of  the  Treasury,  May  30, 
1860. 

Isaac  Toucey,  Acting  Secretary  of  the  Treasury,  December 
10,  1860. 

Thomas  A.  Scott,  Acting  Secretary  of  War,  August  2, 1861. 

George  Harrington,  Acting  Secretary  of  the  Treasury, 
December  18,  1861. 

F.  W.  Seward,  Acting  Secretary  of  State,  January  4,  1S62, 


Cl.  2.] 


RULE  AS  TO  DEBATES,  423. 


415 


and  January  25,  18G2,  and  February  6,  18G2,  and  April  9, 
18G2. 

George  Harrington,  Acting  Secretary  of  the  Treasury, 
April  11,  1862,  and  May  5,  1862.  4 

William  Hunter,  Acting  Secretary  of  State,  May  14,  1862. 

George  Harrington,  Acting  Secretary  of  the  Treasury,  May 
19,  1862. 

F.  W.  Seward,  Acting  Secretary  of  State,  June  11,  1862, 
and  June  30,  1862. 

George  Harrington,  Acting  Secretary  of  the  Treasury, 
January  8,  1863. 

F.  W.  Seward,  Acting  Secretary  of  State,  December  23, 
1863,  and  April  11,  1864. 

George  Harrington,  Acting  Secretary  of  the  Treasury, 
April  14,  1864,  and  April  27,  1864,  and  June  7,  1864,  and 
June  30,  1864. 

F.  W.  Seward,  Acting  Secretary  of  State,  January  4,  1865, 
and  February  1, 1865. 

George  Harrington,  Acting  Secretary  of  the  Treasury, 
March  4,  1865. 

F.  W.  Seward,  Acting  Secretary  of  State,  May  15,  1866. 

William  E.  Chandler,  Acting  Secretary  of  the  Treasury, 
December  20,  1866. 

John  T.  Hartley,  Acting  Secretary  of  the  Treasury,  Sep- 
tember 16,  1867,  and  November  13,  i867. 

F.  W.  Seward,  Acting  Secretary  of  State,  March  11,  1868.” 

1 Trial  of  the  President,  358.  And  for  a more  historical 
account  of  the  persons  temporarily  appointed  to  discharge 
the  duties  of  heads  of  departments,  see  same  volume,  575- 
594. 

President  Johnson,  in  a letter  to  Hugh  McCullough,  Sec- 
retary of  the  Treasury,  said  that  he  suspended  Secretary 
Stanton  under  the  act  of  2d  March,  1867.  But  in  his  answer 
before  the  Senate  he  claimed  the  power  independently  of  the 
law  under  the  Constitution.  Trial  of  the  President,  pp.  37- 
58,  363,  364. 

The  first  eight  charges  in  the  articles  of  impeachment  of 
President  Johnson  were  that  the  removal  of  Stanton  was 
intended  to  be  a violation  of  the  tenure  of  office  act,  and  also 
a violation  of  the  Constitution  of  the* United  States.  Curtis’ 
Speech,  §377,  378. 

Senator  Grimes  reviewed  the  debate  of  1789,  and  sustained 
this  power  of  the  President.  2 Trial  of  the  President,  329, 
330. 

423.  Rule  as  to  debates.  The  debates  in  Congress 
upon  a law  should  not  be  taken  into  consideration  in  constru- 
ing that  law.  The  rule  is  thus  stated  by  Chief  Justice  Taney : 

“In  expounding  this  law,  the  judgment  of  the  court  cannot 
in  any  degree  be  influenced  by  the  construction  placed  upon  it 
by  individual  members  of  Congress  in  the  debate  which  took 


Johnson 
and  Stan- 
ton. 


State  the 
rule  as  to 
debates. 


416 


THE  CONSENT,  423,  424. 


[Art.  II,  Sec.  2, 


Sumner 
upon  the 
interpreta- 
tion of 
statutes. 


How  as  to 
removals? 


place  on  its  passage , nor  by  the  motives  or  reasons  assigned 
by  them  for  supporting  or  opposing  amendments  that  were 
offered.  The  law  that  passed  is  the  will  of  the  majority  of 
both  houses,  j^nd  the  only  mode  in  which  that  will  is  spoken 
is  in  the  act  itself : and  we  must  gather  their  intention  from 
the  language  there  used,  comparing  it,  when  any  ambiguity 
exists,  with  the  laws  upon  the  same  subject,  and  looking , if 
necessary , to  the  public  history  of  the  times  in  icliich  it  ivas 
passed . (Aldridge  v.  Williams,  3 Howard’s  Rep.,  24.)  Sena- 
tor Sumner,  Trial  of  the  President,  262.  The  same  con- 
struction was  stated  in  the  United  States  v.  The  Union  Pacific 
Railroad,  1 Otto,  000. 

Mr.  Grimes  quoted  the  debates  on  the  tenure  of  office  law 
to  show  that  the  Secretary  of  War  was  not  included  in  the 
proviso  of  section  two  of  the  tenure  of  office  law.  He  also 
thought  that  the  act  of  1795  had  not  been  repealed,  and  that 
there  was  no  distinction  between  an  ad  interim  designation 
during  the  session  and  in  the  recess.  That  if  the  power  ex- 
isted, there  could  be  no  offense  in  the  removal  and  designa- 
tion; if  it  did  not,  then  the  President  was  entitled  to  the 
benefit  of  doubts  and  to  show  that  he  took  the  advice  of  his 
cabinet.  Id.,  331-337. 


424.  “ The  Consent  ” of  the  Senate  would  be  necessary 
to  displace  as  well  as  to  appoint.  Federalist,  Mo.  77.  And  this 
rule  was  acted  on  by  President  Adams  in  the  removal  of 
Timothy  Pickering,  Secretary  of  State,  and  the  appoint- 
ment of  John  Marshall,  12  May,  1800.  (See  the  correspond- 
ence.) 1 Trial  of  the  President,  362-365  ; The  works  of  John 
Adams,  by  his  son,  Charles  Francis  Adams,  Little  and  Brown’s 
edition.  53-55.  For  the  debate  in  the  House  during  Washing- 
ton’s administration,  (1789,)  see  2 Marshall’s  Life  of  Wash- 
ington, Philadelphia  edition,  162 ; and  in  the  Senate,  1 Life 
of  Adams,  by  Charles  F rancis  Adams,  448-550 : Defense  of  the 
President,  by  Curtis,  vol.  I,  389.  Chancellor  Kent  regarded 
this  action  of  Congress  (1812)  as  practically  settling  the  ques- 
tion in  favor  of  the  constitutional  power  of  removal  by  the 
President  without  the  advice  of  the  Senate.  (1  Kent  Com., 
310.)  And  such  was  the  opinion  of  Chief  Justice  Marshall. 
(2  Marshall’s  Life  T>f  Washington,  162.)  Senator  Fowler,  3 
Trial  of  the  President,  199. 

It  was  practically  resolved  by  the  Senate  in  Mr.  Duane’s 
case  that  removals  ought  to  be  for  cause.  Such  seems  to  have 
been  the  view  of  President  Jefferson  when  first  installed  into 
office.  Manager  Logan.  2 Trial  of  the  President,  37-39. 

Senator.  Trumbull  believed  the  tenure  of  office  law  to  be 
constitutional.  But  he  insisted  that  Mr.  Stanton,  having 
been  appointed  by  President  Lincoln  during  a previous  term, 
and  his  appointment  never  having  been  renewed,  he  was 
neither  in  t lie  body  of  the  act  nor  the  exception  ; and,  there- 
fore, under  the  act  of  1795,  the  President  had  the  right  to 


Cl.  2,  3.] 


TO  FILL  VACANCIES,  424,  425. 


417 


remove  Stanton,  and  to  make  the  temporary  appointment 
of  Thomas.  3 Trial  of  the  President,  325-328. 

And  upon  this  law  of  1795,  (which  according  to  ordinary 
rules  of  construction  was  repealed  by  the  act  of  1863,)  the 
impeachment  failed. 

3 The  President  shall  have  Power  to  fill  up  all 
Vacancies  that  may  happen  during  the  Eecess  of  the 
Senate,  by  granting  Commissions  which  shall  expire 
at  the  End  of  their  next  Session. 

425.  u To  FILL  UP  ALL  VACANCIES.”  The  first  act  of 
Congress  of  1795  gave  the  President  the  power,  in  case  of  a 
vacancy  in  the  office  of  any  head  of  department  or  other  exe- 
cutive office,  to  authorize  any  person  to  perform  the  duties  of 
such  office  until  a successor  be  appointed,  limiting  the  time 
to  six  months.  (1  Stat.,  401.)  This  act  was  changed,  if  not 
repealed,  by  the  act  of  20  Feb.,  1863,  (12  Stat.,  656,)  which 
provided  that  in  case  of  death,  resignation,  absence  from  the 
seat  of  Government,  or  sickness,  &c.,  &c.,  limiting  the  time 
of  service  to  six  months.  (12  Stat.,  657.) 

It  was  argued  by  Mr.  Curtis  that  the  act  of  1863  did  not 
necessarily  repeal  the  act  of  1795.  (Sedg.  on  Stat.  Law,  126.) 
1 Trial  of  the  President,  401,  402. 

The  point  in  the  case  was,  that  under  the  law  of  1863  the 
removal  of  Stanton  by  the  President  did  not  create  a vacancy 
which  authorized  the  appointment  of  Thomas  ad  interim ; 
whereas  the  law  of  1795  applied  to  any  vacancy. 

The  Constitution  only  provided  for  appointments  during 
' the  recess  and  during  the  session,  with  the  advice  of  the  Sen- 
ate ; but  necessity  prompted  the  passage  of  sundry  acts  to 
meet  sudden  and  particular  emergencies.  (1  Stat.,  281,  415; 
12  Stat.,  635.)  These  laws  apply  whether  these  vacancies 
occur  during  a recess  or  during  the  session.  Curtis  in  De- 
fense, 1 Trial  of  the  President,  403. 

The  subsequent  acts  of  1792  and  1795,  in  providing  for 
vacancies,  made  no  distinction  between  vacancies  during  the 
session  and  during  the  recess,  and  in  the  numerous  acts  cited 
by  counsel,  providing  for  the  creation  and  tenure  of  offices, 
passed  prior  to  March  2, 1867,  no  distinction  is  made  between 
a removal  during  the  session  and  during  the  recess.  The 
practice  has  corresponded  with  this  construction.  In  two 
cases  the  power  to  remove  heads  of  departments  has  been 
exercised ; the  one  by  John  Adams,  in  the  removal  of  Timo- 
thy Pickering ; the  other  by  Andrew  Jackson,  in  the  removal 
of  Mr.  Duane.  The  first  case  occurred  during  the  session, 
and  the  latter  during  the  recess.  In  compliance  with  this 
construction,  the  commissions  of  heads  of  departments  declare 
their  tenure  to  be  during  the  pleasure  of  the  President,  and 
the  commission  under  which  Mr.  Stanton  now  holds  the  De- 


Trumbull. 


State  the 
power  to 
fill  vacan- 
cies. 


Recite  the 
acts  for  fill- 
ing vacan- 
cies ? 
319-330. 


How  far  re- 
pealed ? 


What  was 
the  point  in 
Stanton’s 
case? 


The  acts  of 
1792  and 
1795. 


Adams  and 
Jackson. 


I 


418 


REPEALS,  425. 


Art.  II,  Sec.  2, 


During 

pleasure. 


Removals 
and  ap- 
point- 
ments. 


What  are 
the  three 
theories? 


Repeals. 


partment  of  War  limits  his  tenure  “during  the  pleasure  of 
the  President  of  the  United  States  for  the  time  being.”  This 
form  of  commission,  used  without  question  for  seventy  years 
through  memorable  political  contests,  is  entirely  inconsistent 
with  a construction  of  the  act  of  1789  limiting  the  power  of 
removal  to  the  recess  of  the  Senate. 

The  distinction  made  by  the  managers  between  removals 
during  the  session  and  during  the  recess  is  derived  from  the 
distinction  made  by  the  Constitution  between  appointments 
made  during  the  session  and  during  the  recess ; but  this  claim 
is  inconsistent  with  the  foundation  upon  which  the  tenure  of 
office  act  rests.  Senator  Sherman’s  Opinion,  3 Trial  of  the 
President,  8. 

During  the  debate  in  1789  there  were  three  distinct  theories 
held  by  different  persons  in  the  House  of  Representatives  : 
One  that  the  Constitution  lodged  the  power  of  removal  with 
the  President  alone ; another  that  it  had  lodged  it  with  the 
President,  acting  with  the  advice  and  consent  of  the  Senate ; 
the  third  that  the  Constitution  had  lodged  it  nowhere,  but 
had  left  it  to  the  legislative  power,  to  be  acted  upon  in  con- 
nection with  the  prescription  of  the  tenure  of  office.  The 
last  of  these  theories  was  at  that  day  held  by  comparatively 
few  persons.  The  first  two  received  not  only  much  the  greater 
number  of  votes,  but  much  the  greater  weight  of  names  run- 
ning in  the  course  of  that  debate  ; so  much  so  that  when  this 
subject  came  under  the  consideration  of  the  Supreme  Court 
of  the  United  States,  in  the  case  of  ex  parte  Hennan,  collat- 
erally only,  Mr.  Justice  Thompson,  who  delivered  the  opinion 
of  the  court,  says  that  it  has  never  been  doubted  that  the  Con- 
stitution had  lodged  the  power  either  in  the  President  alone 
or  in  the  President  and  Senate.  Curtis  in  Defense  of  the 
President,  1 Trial  of  the  President,  391,  395,  396.  See  Ham- 
ilton’s views  of  the  appointing  power.  Federalist,  pp.  76,  77. 

Where  the  office  was  created  during  a session  of  Congress, 
but  not  filled  until  after  the  adjournment,  Secretaiy  Guthrie 
held  that,  the  office  not  having  been  filled  before  the  adjourn- 
ment of  the  Senate,  it  must  necessarily  remain  vacant  until 
its  next  session.  1 Trial  of  the  President,  719.  This  accords 
with  the  view  of  Judge  Story  on  the  Constitution,  § 1557,  and 
of  Mr.  Wirt,  4 Opin.,  362.  And  for  distinction  between  per- 
manent and  temporary  appointments  see*  United  States  v. 
Kirkpatrick,  9 Wheat.,  720;  Benton’s  Thirty  Years’ View, 
Chap.  29. 

The  act  of  1795  repealed  the  act  of  1792  as  to  the  cases  therein 
enumerated,  but  it  left  the  cases  of  sickness  and  absence  un- 
touched. As  to  these  the  power  under  the  act  of  1792  was 
applied  until  the  act  of  20  February,  1863.  This  latter  act 
repeals  the  whole  act  of  1792.  But  the  act  of  1863  left  un- 
touched vacancies  by  removal  and  by  expiration  of  a limited 
tenure  of  office.  The  conclusion,  therefore,  is,  that  whatever 
power  the  President  had,  by  the  act  of  1795,  to  appoint  any 


Cl.  3.]  THAT  MAY  HAPPEN,  425,  426. 

person  ad  interim , in  case  of  removal,  remains  unaffected  by 
the  act  of  1863.  Nor  did  the  act  of  2 March,  1867,  repeal  the 
act  of  1795. 

My  conclusion,  therefore,  is,  that  as  the  President  had  a 
legal  right  to  remove  Mr.  Stanton,  notwithstanding  the  act 
of  March  2, 1867,  he  had  a right  to  issue  the  letter  of  authority 
to  General  Thomas  to  discharge  the  duties  of  the  Department 
of  War,  under  and  by  virtue  of  the  act  of  1795.  Senator 
Fessenden,  3 Trial  of  the  President,  23,  24. 

The  abo\  e was  really  the  saving  point  in  Johnson’s  case — 
Ed.  See  Reverdy  Johnson’s  argument,  3 Id.,  54,  55;  See 
Senator  Fowler’s  opinion,  201, 202 ; Trumbull,  325,  326.  The 
act  of  1795  was  of  doubtful  constitutionality.  But  its  exist- 
ence, unrepealed,  would  relieve  the  President  from  any  crim- 
inal intent.  Senator  Sherman,  3 Johnson’s  Trial,  12.  It 
was  repealed  by  the  section  of  the  act  of  20  Feb.,  1863.  (12 
Stat,,  656.)  Id.,  13.  Senator  Trumbull  took  the  opposite 
ground.  Id.,  321-325.  The  act  of  1792  does  little  more  than 
provide  for  cases  of  disability.  All  vacancies  were  provided  for 
by  the  Constitution ; and  temporary  disabilities  and  vacancy 
by  death  were  provided  for  by  the  law  of  1795.  What  the  Con- 
stitution had  done  well  the  act  does  over  again ; what  the 
Constitution  had  not  done  at  all  the  act  omits  to  do.  Sena- 
tor Howe,  Id.,  73.  The  act  of  1863  re-enacted  all  that  was 
in  both  the  acts  of  1792  and  1795,  and  repealed  them  both. 
(Ellis  v.  Paige,  1 Pick.,  44;  and  other  cases  of  constructive 
repeals  cited.)  Senator  Howe,  3 Id.,  74.  And  all  the  acts 
contemplate  temporary  appointments  not  vacancies  to  be 
created.  Id.,  74,  75.  The  act  of  1795  was  repealed  by  con- 
struction. (Leighton  v.  Walker,  9 N.  II.,  61 ; Barton  v.  King, 
12  Mass.,  563.)  3 Trial  of  the  President,  91. 

Senator  Hendricks  argued  that  the  act  of  1795  did  not 
repeal  the  act  of  1792  ; and  that  neither  the  act  of  1863  nor 
the  tenure  of  office  act  of  1867  repealed  the  act  of  1795.  3 

Id.,  99,  100.  And  so  argued  Senator  Fowler,  3 Id.,  202, 203. 

See  Buchanan’s  message  in  regard  to  the  appointment  of 
Joseph  Holt,  Secretary  of  War,  January,  1861. 

The  act  of  1863  was  repealed  by  the  act  of  1795,  by  neces- 
sarv  implication.  Senator  Sumner,  3 Trial  of  the  President, 
266. 

Upon  the  whole  it  will  be  seen  that  as  a judicial  precedent 
the  acquittal  turned  upon  the  reasoning  of  Fessenden  and 
Trumbull  against  the  repeal  of  the  act  of  1795.  They  gave 
to  the  President  the  benefit  of  doubt  where  the  repeal  was 
only  constructive. 

“ That  may  happen.”  Things  happen  by  chance, 
as  by  death,  resignation,  absence  not  by  previous  contrivance. 
The  President  cannot  empty  in  order  to  fill.  He  cannot 
make  a vacancy  and  then  say  it  has  happened.  Senator 
Morrill,  3 Trial  of  the  President,  137. 


419 


What  was 
the  saving 
point  in 
Johnson’s 
case  ? 


The  con- 
flicting 
views. 


Define  hap- 
pen? 

185, 186,  309. 


420 


EXECUTE  THE  LAWS,  426-428.  [Art.  II, Sec.  3, 


State  the 
further 
powers  of 
the  Presi- 
dent? 
178-184. 


How  shall 
he  faith- 
fully exe- 
cute the 
laws? 


This  confers  upon  the  President  full  power  to  fill  vacancies 
in  the  recess  of  the  Senate  irrespective  of  the  time  when 
such  vacancies  first  occurred.  (12  Op.,  32,  449,  455.)  And 
there  are  no  restrictions  upon  the  power  of  appointment. 
And  he  may  appoint  such  as  the  Senate  has  failed  to  confirm . 
14  Op.,  564. 

Sec.  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures 
as  he  shall  judge  necessary  and  expedient;  he 
may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagree- 
ment between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time 
as  he  shall  think  proper;  he  shall  receive  Ambassa- 
dors and  other  public  Ministers ; he  shall  take  care 
that  the  Laws  be  faithfully  executed,  and  shall 
commission  all  the  Officers  of  the  United  States. 

42T.  “ The  state  of  the  union.”  The  Union  here 
means  the  whole  of  the  country,  States  and  Territories — in 
fact,  all  the  country  under  the  jurisdiction  of  the  United 
States.  And  possibly  it  is  always  used  in  the  Constitution 
in  this  enlarged  sense. 

428.  uHe  shall  take  care  that  the  laws  be 
faithfully  executed.”  Do  not  let  me  he  misunder- 
stood. I am  not  intending  to  advance  upon  or  occupy  any 
extreme  ground,  because  no  such  extreme  ground  has  been 
advanced  upon  or  occupied  by  the  President.  He  is  to  take 
care  that  the  laws  are  faithfully  executed.  When  a law  has 
been  passed  through  the  forms  of  legislation,  either  with  or 
without  his  assent,  it  is  his  duty  to  see  that  that  lavr  is  faith- 
fully executed  so  long  as  nothing  is  required  from  him  but 
ministerial  action.  He  is  not  to  erect  himself  into  a judicial 
court  and  decide  that  the  law'  is  unconstitutional,  and  that, 
therefore,  he  will  not  execute  it ; for,  if  that  were  done, 
manifestly  there  never  could  be  a judicial  decision.  He  would 
not  only  veto  a law,  but  he  would  refuse  all  action  under  the 
law  after  it  had  been  passed,  and  thus  prevent  any  judicial 
decision  from  being  made.  He  asserts  no  such  powrer ; has 
no  such  idea  of  his  duty.  Ilis  idea  is,  that  if  a law  is  passed 
over  his  veto  which  he  believes  to  be  unconstitutional,  and 
that  law  affects  the  interests  of  third  persons,  those  whose 
interests  are  affected  must  take  care  of  them,  vindicate  them. 


Cl.  3.] 


TAKE  CAKE,  428,  429. 


4^1 


raise  questions  concerning  them,  if  they  should  be  so  advised. 
If  such  a law  affects  the  general  and  public  interests  of  the 
people,  they  must  take  care  at  the  polls  that  it  is  remedied 
in  a constitutional  way. 

But  when  a question  arises  whether  a particular  law  has 
cut  off  a power  confided  to  him  by  the  people,  through  the 
Constitution,  and  he  alone  can  raise  that  question,  and  cause 
a judicial  decision  to  come  between  the  two  branches  of  the 
Government  to  say  which  of  them  is  right,  and  after  due 
deliberation,  with  the  advice  of  those  who  are  his  proper 
advisers,  he  settles  down  firmly  upon  the  opinion  that  such 
is  the  charater  of  the  law,  it  remains  to  be  decided  whether 
there  is  any  violation  of  his  duty  when  he  takes  the  needful 
steps  to  raise  that  question  and  have  it  peacefully  decided. 
Curtis  in  the  defense  of  the  President,  1 Trial,  387,  396. 

429.  uHe  shall  take  care.”  That  is,  he  shall  be  dili- 
gent, attentive,  faithful  in  the  appointment  of  proper  offi- 
cers, and  in  seeing  that  they  faithfully  discharge  their  duties. 
Senator  Howard,  3 Trial  of  the  President,  35. 

To  the  Chief  Executive  Magistrate  of  the  Union  is  confided 
the  solemn  duty  of  seeing  thelaws  faithfully  executed.  That 
he  may  be  able  to  meet  this  duty  with  a power  equal  to  its 
performance  he  nominates  his  own  subordinates  and  removes 
them  at  pleasure.  For  the  same  reason  the  land  and  naval 
forces  are  under  his  orders  as  their  commander-in-chief.  But 
his  power  is  to  be  used  only  in  the  manner  prescribed  by  the 
legislative  department.  He  cannot  accomplish  a legal  pur- 
pose by  illegal  means,  or  break  the  laws  himself  to  prevent 
them  from  being  violated  by  others.  (9.  Op.  Att’y  Gen.  516.) 
Senator  Edmonds,  3 Johnson  Trial,  83  ; Senator  Vickers,  Id., 
117. 

This  duty  to  execute  the  laws  no  more  includes  the  power 
to  remove  an  officer  than  it  does  to  create  an  office.  The 
President  cannot  add  a soldier  to  the  army,  a sailor  to  the 
navy,  or  a messenger  to  his  office,  unless  that  power  is  con- 
ferred upon  him  by  law;  yet  he  cannot  execute  the  laws 
without  soldiers,  sailors,  and  officers.  His  general  power  to 
execute  the  laws  is  subordinate  to  his  duty  to  execute  them 
with  the  agencies  and  in  the  mode  and  according  to  the  terms 
of  the  law.  The  law  prescribes  the  means  and  the  limit  of 
his  duty,  and  the  limitations  and  restrictions  of  the  law  are 
as  binding  upon  him  as  the  mandatory  parts  of  the  law. 
Senator  Sherman,  3 TriaLof  the  President,  4 ; Senator  How- 
ard, Id.,  33-35  ; Howe,  Id.,  63. 

In  a letter  of  Mr.  Madison  to  Edward  Coles,  of  15  October, 
1834,  (4  Madison’s  Writings,  368,)  in  referring  to  the  ques- 
tion of  the  right  of  the  Senate  to  participate  in  removals, 
that  distinguished  statesman  writes  thus  : 

“The  claim  on  constitutional  ground  to  a share  in  the  re- 
moval as  well  as  appointment  of  officers  is  in  direct  opposition 


Johnson’s 

views. 


How  take 
care  ? 


The  power 
does  not 
include  the 
power  to 
remove. 


Madison 


422 


Madison. 


Can  the 
power  of 
removal  be 
deduced 
from  this 
injunction? 


Howard. 


Washing- 

ton. 


POWER  OP  REMOVAL,  429.  [Art.  II,  Sec.  3,  4, 

to  the  uniform  practice  of  the  Government  from  its  commence- 
ment. It  is  clear  that  the  innovation  would  not  only  vary 
essentially  the  existing  balance  of  power,  but  expose  the 
Executive,  occasionally,  to  a total  inaction,  and  at  all  times 
to  delays  fatal  to  the  due  execution  of  the  laws.” 

And  on  the  16th  of  February,  1835,  in  a speech  in  the 
Senate,  Mr.  Webster,  whilst  questioning  the  correctness  of 
the  decision  of  ’89,  says : 

“I  do  not  mean  to  deny  ‘that  at  the  present  moment  the 
President  may  remove  these  officers  at  will,  because  the 
early  decision  adopted  that  construction,  and  the  laws  have 
since  uniformly  sanctioned  it.’”  Senator  Reverdy  John- 
son, 3 Trial  of  the  President,  56. 

The  power  of  removal  is  inherent  in  the  Executive,  and  is 
deducible  from  the  power  to  see  the  laws  faithfully  executed. 
And  the  power  cannot  be  taken  from  the  President.  Sen- 
ator Hendprson,  3 Id.,  295-297.  This  view  wras  very  forci- 
bly denied.  Senator  Patterson,  309-311.  lie  cited  the  ar- 
guments of  Clay  and  Webster  (in  1835)  in  favor  of  limiting 
the  power  of  removal.  Id.,  311.  Of  the  power  of  Congress  to 
define  the  tenure  of  the  offices  it  establishes  and  makes  them 
determinable  either  at  the  will  of  the  President  alone,  of 
the  President  and  Senate  together,  or  at  the  expiration  of  a 
fixed  period  I have  no  doubt.  Senator  Trumbull,  3 Id.,  321. 

But  on  the  other  side  Senator  Howard  said  : 

“It  is  true  that  the  first  Congress  in  1789  did,  as  the 
President’s  answer  sets  up,  by  tlie  act  organizing  the  De- 
partment of  State,  recognize  and  admit  the  power  of  removal 
in  the  President.  But  it  must  not  be  forgotten  that  this 
legislative  construction  of  the  Constitution"  was  sanctioned 
by  a majority  of  only  12  in  the  House,  while  the  Senate  was 
equally  divided  upon  it,  the  casting  vote  being  given  by 
John  Adams,  the  Vice  President.  This  state  of  the  vote 
shows  plainly  that  the  opinion  thus  expressed  by  the  two 
houses  was  but  an  opinion,  and  that  it  was  contested  and 
resisted  by  a very  powerful  opposition.  The  dispute  lias 
continued  from  that  day,  and  the  ablest  intellects  of  the 
country  have  been  ranged  on  the  respective  sides — Sherman, 
Alexander  Hamilton,  Webster,  Clay,  and  others  of  the 
highest  eminence  as  jurists  against  the  power;  Madison  and 
numerous  others  of  great  ability  in  favor  of  it.  It  has  never 
been  a settled  question . Mr.  Webster  tells  us  that,  on  the 
passage  of  the  act  of  1789,  it  was  undoubtedly  the  great 
popularity  of  President  Washington  and  the  unlimited  con- 
fidence the  country  reposed  in  him  that  insured  the  passage 
of  the  bill  by  moderating  the  opposition  to  it ; and  the  history 
of  the  times  confirms  the  comment.  It  was  the  beginning 
of  the  Us  mota.  And  so  doubtful  has  the  power  ever  since 
been  considered  that  there  seems  to  have  been  no  distinct 
case  of  removal  by  the  President  during  the  session  of  the 
Senate  but  by  making  to  them  a new  nomination.”  3 Trial 
of  the  President,  34,  35. 


ci. 3.]  the  president,  429-431.  423 

And  while  he  admitted  that  the  power  to  appoint  carried  Joint  ac- 
along  the  power  to  remove,  he  insisted  that  as  the  appoint-  tion- 
ment  required  the  joint  action  of  the  President  and  the 
Senate  their  joint  action  was  necessary  to  a removal. 

Mr.  Howe  insisted  that  in  the  debate  of  1789  the  majority  Debate  of 
embraced  all  those  who  insisted  that  the  President  had  the  1789- 
power  to  remove  under  the  Constitution  and  also  those  who 
insisted  that  Congress  might  confer  the  power.  Id.,  3 
Johnson’s  Trial,  58-60.  He  showed  that  Air.  Madison  changed 
his  ground  on  the  question  of  original  powver.  The  right  to 
confer  the  power  of  removal  on  Congress  was  asserted  by 
the  act  of  15  May,  1820.  See  his  reference  to  the  debate 
and  note  upon  Calhoun’s  bill  in  1835,  Ifl.,  60,  And  in  the 
act  of  1863,  to  create  a national  curency,  with  the  appoint- 
ment of  an  officer  with  a term  of  five  years,  4 ‘unless  sooner 
removed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate.”  And  again  in  the  act  of  1863,  in 
the  act  for  a national  curency  secured  by  a pledge  of  United 
States  bonds.  (13  St.  100.)  And  in  the  act  30  June,  1867, 
forbidding  the  removal  of  officers  except  upon  the  sentence 
of  a court-martial.  (Congressional  Globe,  1 Sess.,  39  Cong., 

3254,  3405.)  Senator  Howe,  3 Johnson’s  Trial,  61,  62.  See 
the  debate  closely  criticised  by  Senator  Edmonds,  3 John- 
son’stTrial,  82. 

The  impeachment  trial  cannot  be  said  to  have  settled  the 
precise  constitutional  limit. 

430.  The  PRESENT  TENURE  OF  OFFICE  LAW.  The  How  stands 
tenure  of  office  act  (note  184,  page  179.)  has  been  greatly  it  now? 
modified  by  the  act  of  5 April,  1869,  (16  Stat.,  p.  7,)  and  the  184* 
two  have  been  carried  into  the  Revised  Statutes,  (sec.  1767  to 

1775.)  The  proviso  in  section  1 has  been  repealed  : The  Pre- 
sident must  send  his  nominations  within  thirty  days  after  the 
meeting  of  the  Senate.  Sections  3 to  7 remain  substantially 
in  force.  The  result  is  that  the  President  does  not  remove 
but  suspends  from  office  in  the  recess,  and  nominates  some 
other  person  to  fill  the  vacancy ; and  if  the  Senate  fail  to 
consent  to  that  nomination,  the  suspended  incumbent  is 
restored,  but  the  person  who  received  the  temporary  ap- 
pointment receives  the  salary,  to  the  exclusion  of  all  claim 
by  the  suspended  officer. 

Sec.  4.  The  President,  Vice-President,  and  all  civil  who  may 
Officers  of  the  United  States,  shall  be  removed  from  peached, 
Office  on  Impeachment  for,  and  Conviction  of,  Trea-  what?r 
son,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

431.  “The  president.”  In  the  first  place  he  will  be  For  what 
impeachable  by  this  House  for  such  an  act  of  mal-adminis-  may the 

32 


424 


IMPEACHMENT,  431-433. 


[Art.  II,Sec.4, 


President 
be  im- 
peached ? 


Who  are 
civil  offi- 
cers ? 


Butler’s 

definition. 


Historical 

cases. 


tration ; for  I contend  that  the  wanton  removal  of  meritori- 
ous officers  would  subject  him  to  impeachment  and  removal 
from  his  own  high  trust.  (Madison’s  speech,  1 Annal  Cong., 
1804-5,  p.  517.)  As  if  the  President  should  accept  a bribe. 
(Manager  Micholson  on  Chase’s  Trial,  5G4.)  Or  refuse  to  sign 
every  law  passed  by  Congress.  (Wickliffe,  in  Peck’s  Trial, 
309.)  Id.,  20.  Manager  Logan,  2 Trial  of  the  President, 
119,  120. 

432.  “And  all  civil  officers  of  the  United 
States.”  “Civil  officers.”  The  office  of  Secretary  of 
War  is  a civil  office.  (14  Op.,  201.)  An  investigating  commit- 
tee of  the  House,  oif  2 March,  1876,  reported  resolutions  im- 
peaching William  W.  Belknap  of  high  crimes  and  misdemean- 
ors. The  evidence  strongly  tended  to  show  the  sale  of  the 
post-tradership  at  Fort  Sill  for  money.  The  committee  also 
reported  that  Belknap’s  resignation  had  been  accepted  by  the 
President  on  the  morning  of  that  day  at  10  a.  m.  The  House, 
after  some  discussion  as  to  whether  the  accused  was  then  a 
civil  officer,  unanimously  voted  the  impeachment.  Of  course 
the  question  is  one  of  jurisdiction,  which  must  finally  he 
determined  by  the  Senate.  Congressional  Record,  3 March, 
1876. 

+ 

433.  “On  impeachment.”  We  define,  therefore,  an 
impeachable  high  crime  or  misdemeanor  to  be  one  in  its 
nature  or  consequences  subversive  of  some  fundamental  or 
essential  principle  of  government,  or  highly  prejudicial  to 
the  public  interest,  and  this  may  consist  of  a violation  of  the 
Constitution,  of  law,  of  an  official  oath,  or  of  duty,  by  an 
act  committed  or  omitted,  or,  without  violating  a positive 
law,  by  the  abuse  of  discretionary  powers  from  improper 
motives,  or  for  any  improper  purpose.  Manager  Butler 
adopting  Mr.  Lawrence’s  definition,  1 Trial  of  the  President, 
88. 

To  support  this  he  relied  on  Lord  Danby’s  case,  11  St. 
Trials,  600 ; Duke  of  Somerest’s  case  1 Howell,  St.  Trials,  521  ; 
Duke  of  M orthnumberland ’s  case,  1 St.  Trials,  765;  Chris- 
tian’s note  on  Blackstone;  Earl  of  Essex  and  Southampton’s 
case,  1 St.  Trials,  1335;  Lord  Aiullej^’s  case,  3 St.  Trials,  402; 
Countess  of  Essex’s  case,  Moore’s  Reports,  621 ; The  Earl  of 
Portland’s  case,  3 St.  Trials,  288 ; Lord  Melville’s  case,  29  St. 
Trials,  1398;  Warren  Hasting’s  case;  The  Trial  of  Peck, 
Addison,  and  Chaise.  All  these  and  the  trial  of  Anne  Bullen 
(or  Boleyn  were  cited  to  show  the  singularity  of  the  pro- 
ceedings, and  that  no  challenges  could  be  made. 

In  all  that  great  trial  there  is  no  more  accurate  and  precise 
learning  than  is  to  be  found  in  the  brief  of  authorities  upon 
the  law  of  impeachable  crimes  and  misdemeanors,  prepared 
by  Hon.  William  Lawrence,  of  Ohio,  which  was  adopted  by 
Mr.  Butler,  p.  123  to  146. 


Cl.  3.] 


MISDEMEANORS,  433,  434. 


425 


Misdemeanor  and  misbehavior  in  office  mean  the  same 
thing.  (7  Dane’s  Abridgement,  365.)  Lawrence’s  Brief  in 
1 Trial  of  the  President,  p.  131,  note ; Curtis’  History  of  the 
Const.,  132 ; Story’s  Const.,  799,  800 ; Dunn  v.  Anderson, 
6 Wheat.,  204. 

In  general,  those  offenses  which  may  be  committed  equally 
by  a private  person  as  by  a public  officer  are  not  the  subjects 
of  impeachment.  (Rawle  on  Const.,  204.)  Lawrence’s  Brief, 
1 Trial  of  the  President,  133;  And  see  1.  Kent’s  Com.,  189. 

Manager  Logan  cited  the  opinion  of  Earl  Grey,  that  the 
remedy  is  commensurate  with  the  necessity  or  expediency, 
which  no  proceedings  in  a court  of  law  could  affect.  (Trial  of 
Queen  Caroline  in  1820,  vol.  l,p.  8.)  And  for  offenses  not 
indictable,  (Brougham,  Id.,  22,)  “That  it  was  so  large  and 
capacious  that  he  could  not  place  bounds  either  in  space  or  in 
time.”  Lord  Coke,  cited  by  Brougham  in  Queen  Caroline’s 
Trial,  vol.  1,  62,  63;  Logan,  2 Johnson’s  Trial,  20.  Four 
out  of  five  of  the  articles  against  Warren  Hastings  were  not 
indictable.  Id. 

We  must  resort  to  this  common  law  definition.  (Wirt  in 
Peck’s  Trial,  498,  499.)  Id.  20.  He  also  quoted  Story  on 
the  Constitution,  §§  794-798. 

& 

434.  “ For  high  crimes  and  misdemeanors.”  And 
we  are  not  bound  to  technical  definitions  of  crimes  and  mis- 
demeanors. A willful  violation  of  law,  a gross  and  palpable 
breach  of  moral  obligations,  tending  to  unfit  an  officer  for 
the  proper  discharge" of  his  office,  or  to  bring  the  office  into 
public  contempt  and  derision,  is,  when  charged  and  proved, 
an  impeachable  offense.  Senator  Sherman,  3 Trial  of  the 
President,  1.  But  there  must  be  moral  turpitude  or  willful 
violation  of  law.  Id.;  see  2 Curtis’  Hist,  of  the  Constitu- 
tion, 260.  Impeachment  is  a process  provided,  not  for  the 
punishment  of  a crime,  but  for  the  protection  of  the  State. 
Howe,  3 Trial  of  the  President,  68.  It  must  be  an  indict- 
able offense.  Senator  Reverdy  Johnson,  3 Id.,  51;  Contra; 
Senator  Yates,  Id.,  104.  And  for  a crime  prescribed  or 
adopted  by  the  United  States  Senator  Garrett  Davis,  3 Id., 
157-159. 

But,  although  there  are  no  common  law  crimes  adopted  by 
the  Constitution,  yet,  in  the  District  of  Columbia,  where  the 
President  resides,  the  common  law  is  in  force,  and  the  com- 
mon law  of  crimes  is  recognized  here.  For  the  definition, 
we  must  resort  to  parliamentary  law  and  the  instances  of 
impeachment  by  which  it  is  illustrated.  (2  Woodson’s  Lec- 
tures, 601.)  Statesmen  are  here  tried  before  and  bystates- 
men, upon  solid  principles  of  morality.  (Burke,  in  the  Trial 
of  Warren  Hastings,  1 Bond’s  Speeches,  4;  2Hallam’s  Con- 
stitution, chap.  12.)  Senator  Sumner,  250-252.  It  may  be 
for  the  violation  of  a political"  trust.  (Federalist,  No.  65; 
Rawle,  Story  and  Curtis.)  Id.  And  such  are  the  precedents 


Misde- 

meanors. 


What  are 
high 

crimes  and 
misde- 
meanors? 


Common 

law 

crimes. 


426 


MISDEMEANORS,  434. 


[Art.  II,  III, 


in  the  trial  of  Pickering,  Chase,  Peck  and  Humphreys.  Id. 
The  technical  rules  and  doctrine  of  variance  governing 
indictments  ought  not  to  prevail  in  these  cases.  (15  How- 
ell’s State  Trials,  467  ; 1,  Bond’s  Trial  of  Warren  Hastings, 
10.)  The  proceedings  cannot  be  tied  down  to  strict  rules. 
(Federalist  65.)  Id. 


* 


Sec. 4,1.]  JUDICIAL  POWER,  435.. 


ARTICLE  III. 

Section  1.  The  judicial  Power  of  the  United 
States,  shall  be  vested  in  one  supreme  Court,  and  in 
such  inferior  Courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  Judges,  both  of 
the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behavior,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a Compensation, 
which  shall  not  be  diminished  during  their  Continu- 
ance in  Office. 


435.  “The  judicial,  power.”  Jurisdiction  is  the 
power  to  hear  and  determine  a cause.  It  is  coram  judice 
whenever  a case  is  presented  which  brings  this  power  into 
action.  If  it  he  either  a complaint  or  a plea,  either  at  law  or 
in  equity,  the  court  has  jurisdiction.  (The  Arredondo  Case, 
6 Pet.,  709.)  If  the  law  confers  the  power  to  render  a judg- 
ment or  decree,  then  the  court  has  jurisdiction.  (Rhode  Isl- 
and v.  Massachusetts,  12  Pet.,  718.)  Banton  v.  Wilson,  4 Tex., 
404.  In  Kuhlman  v.  The  Commonwealth,  5 Binney,  24,  it  is 
said : u The  distinction  is  thus  taken  in  Groenvelt  v.  Burwell, 
1 Salk.,  263;  S.  C.  Carth.,  494;  S.  C.,  1 Ld.  Raym.,  469: 
Whenever  a new  jurisdiction  is  erected  by  act  of  parliament, 
and  the  court  or  judge  that  exercises  this  jurisdiction  acts  as 
a judge  or  court  of  record,  according  to  the  course  of  the 
common  law,  a writ  of  error  lies  on  their  judgment;  but 
when  they  act  in  a summary  Method,  or  in  a new  course  dif- 
ferent from  the  common  law,  a writ  of  error  does  not  lie,  but 
certiorari.  (Broks  v.  Morgan,  5 Ired.,  485 ; Weldz  v.  Wash- 
burn, 16  Johns.,  49 ; Savage  v.  Gulliver,  4 Mass.,  177.)  Tim- 
mins v.  Lacey,  30  Tex.,  133,  134.  The  court  has  no  juris- 
diction to  control  the  discretion  of  executive  officers.  Thus 
a mandamus  will  not  lie  to  compel  the  treasurer  to  pay 
money  out  of  the  treasury.”  (Auditorial  Board  v.  Arles,  15 
Tex.,  75;  Kendall  v.  The  United  States,  12  Pet.,  609;  The 
United  States  v.  Guthrie,  17  How.,  303;  Brashear  v.  Mason, 
6 How.,  101;  Decatur  v.  Paulding,  14  Pet.,  516;  Tapp,  on 
Mand.,  161,  162,  315.)  Houston  Tap  and  Brazoria  Railroad 
Company  v.  Randolph,  24  Tex.,  339. 

The  power  of  the  courts  to  control  the  executive  officers 
of  the  government  by  mandamus  or  injunction  was  denied 
after  an  exhaustive  review  of  all  the  previous  cases.  Gaines 
v.  Thompson,  7 Wall.,  551,  552  ; The  Secretary  v.  McGarra- 
han,  9 Wall.,  311 ; Paschal’s  Digest  of  Decisions,  §§  18131- 
18137. 


427 


Where  does 
the  judicial 
power  re- 
side? 


How  long 
do  the 
judges  hold 
their 
offices? 


Define 

power. 

195. 


Can  the 
courts  con- 
trol execu- 
tive offi- 
cers? 


Over  the 
executive. 


428 


INFERIOR  COURTS,  436-438.  [Art.  Ill, Sec.  1, 2, 


Give  a later 
history  of 
the  su- 
preme 
judges. 
Note  197. 


Waite. 


Stanton. 


Strong. 


Bradley. 


Ages. 


Were  the 
provisional 
courts  in- 
ferior? 


What  is  the 
compensa- 
tion of  the 
judges,  and 
what  is  the 
power  to 


436,  u In  one  Supreme  Court.”  Chief  Justice  Chase 
died  7 May,  1873.  No  appointment  was  made  “to  fill  up 
the  vacancy  during  the  recess.”  But  at  the  meeting  of 
Congress,  the  President  nominated  the  Hon.  George  Henry 
Williams,  of  Oregon,  then  the  attorney  general,  to  the  office, 
but  the  Senate  not  consenting  his  name  was  withdrawn,  and 
Hon.  Caleb  Cushing,  of  Virginia,  was  nominated,  but  the 
Senate  not  consenting,  Morrison  R.  Waite,  of  Ohio,  was 
nominated,  and  on  the  21  May,  1874,  he  was  confirmed  and 
appointed,  but  not  sworn  until  4 March  following ; so  that 
the  office  of  chief  justice  was  vacant  nearly  ten  months. 

Hon.  Robert  Cooper  Grier  resigned  15  December,  1869, 
to  take  effect  1 February  thereafter,  and  died  25  September, 
1870.  On  20  December,  1870,  Hon.  Edwin  Macy  Stanton 
was  nominated,  his  appointment  advised,  and  he  was  com- 
missioned the  same  day.  He  was  born  19  December,  1814, 
and  died  20  December,  1869,  never  having  taken  his  seat  as 
associate  justice. 

On  14  March,  1870,  the  President  sent  the  name  of  Hon. 
William  Strong  to  the  Senate,  which  advised  and  consented 
to  the  appointment,  and  on  14  March,  1870,  he  was  appointed 
and  commissioned.  Hon.  Samuel  Nelson  resigned  28  No- 
vember, 1872,  and  died  1873.  Hon.  Ward  Hunt,  of  New 
York,  was  nominated,  confirmed,  and  appointed  9 January, 
1873. 

By  the  act  of  10  April,  1869,  the  Supreme  Court  was  in- 
creased to  nine  judges.  On  23  March,  1870,  Hon.  Joseph  P. 
Bradley,  of  New  Jersey,  was  nominated,  and  the  Senate 
having  advised  and  consented,  he  was  appointed  on  23 
March,  1870. 

The  new  judges  were  respectively  born  as  follows  : Joseph 
P.  Bradley,  in  1813 ; Samuel  Strong,  6 May,  1808 ; Ward 
Hunt,  14  June,  1810;  Morrison  R.  Waite,  27  November, 
1816. 

437,  “And  in  such  inferior  courts.”  The  pro- 
visional court  established  by  proclamation  in  regard  to  Louis- 
iana took  jurisdiction  of  an  admiralty  cause  pending  in  the 
United  States  circuit  court  of  Louisiana.  There  was  no 
doubt  of  the  constitutional  power  of  the  President  to  estab- 
lish such  court.  And  Congress  having,  by  act,  ordered  the 
transfer  of  all  pending  causes  and  judgments  in  the  provis- 
ional court  to  the  circuit  court,  an  appeal  rightfully  lay  from 
such  judgment  to  the  circuit  court.  The  Grapesliot,  9 IIow., 
129,  133. 

438,  uAnd  shall  at  stated  times  receive  for 

THEIR  SERVICES  A COMPENSATION,  WHICH  SHALL  NOT  BE 
DIMINISHED  DURING  THEIR  CONTINUANCE  IN  OFFICE.” 
By  the  act  of  3 March,  1873,  the  salary  of  the  chief  justice 
and  associate  justices  was  increased  to  ten  thousand  dollars 


Cl.  1,] 


GENERAL  PRINCIPLE,  438,  439. 


429 


per  annum  each.  (Rev.  Stats.,  secs.  673-676.)  On  10  March,  diminish 
1863,  the  Supreme  Court  ordered  the  letter  of  Chief  Justice  ^ ? 

Taney  of  15  February  of  that  year  to  be  recorded  in  the  Aaney* 
minutes  of  the  court,  as  a protest  against  the  collection  of 
three  per  cent,  tax  on  the  salaries  of  the  judges,  under  the 
act  of  Congress.  It  is  urged  that  it  unconstitutionally  dimin- 
ishes the  compensation  of  every  judge,  and  that  it  is  a ques- 
tion that  no  judge  can  try  judicially.  The  right  to  diminish 
a salary  fixed  bjr  law,  either  by  taxation  or  otherwise,  is  de- 
nied. Supreme  Court  records  of  that  date.  This  letter  and 
order  are  also  found  in  Tyler’s  Life  of  Taney,  432-435.  And 
the  author  adds,  that  in  1872,  the  then  Secretary  of  the  Treas- 
ury,  Boutwell,  had  adopted  the  views  contained  in  the  chief  Boutwell. 
justice’s  letter,  and  he  declined  to  deduct  the  internal  reve- 
nue tax  from  the  salaries  of  the  judges.  It  therefore  resulted 
that  Secretary  Chase,  who  failed  to  answer  Taney’s  protest, 
himself,  as  chief  justice,  received  the  benefit  of  Taney’s  en- 
lightened opinion.  The  income  tax  was  refunded. 

Section  2.  ^he  judicial  Power  shall  extend  to  J^what 
all  Cases,  in  Law  and  Equity,  arising  under  this  jl^j.alex 
^Constitution,  the  Laws  of  the  United  States,  and  tend? 

Page  194, 

Treaties  made,  or  which  shall  be  made,  under  their  notes  199- 
Authority  ; — to  all  Cases  affecting  Ambassadors, 
other  public  Ministers,  and  Consuls ; — to  all  Cases 
of  admiralty  and  maritime  Jurisdiction  ; — to  Con- 
troversies to  which  the  United  States  shall  be  a 
Party ; — to  Controversies  between  two  or  more 
States; — between  a State  and  Citizens  of  another 
State; — between  Citizens  of  different  States, — be- 
tween Citizens  of  the  same  State  claiming  Lands 
under  Grants  of  different  States,  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States, 

Citizens  or  Subjects. 

439.  General  principle.  In  some  cases  from  their  state  the 
commencement  the  federal  jurisdiction  is  exclusive;  in  other  se.nei;al 
cases  the  Constitution  and  laws  determine  at  what  stage  of  o^oHginal 
the  procedure  such  jurisdiction  shall  attach,  and  how  long  and  appei- 
and  how  far  concurrent  jurisdiction  of  the  State  courts  shall 
be  permitted.  Thus,  as  to  all  cases  affecting  ambassadors,  1C  10D‘ 
admiralty  jurisdiction,  and  where  the  United  States  are 
parties,  the  cognizance  of  the  United  States  courts  is  exclu- 
sive. But  as  to  cases  where  the  parties — citizens  or  aliens — 


430 

When  to 
transfer. 


Gaines. 


Annulment 
of  wills. 


What  is 
judicial 
power? 


; JUDICIAL  POWER,  439,  440.  [Art.  HI.  Sec.  2, 

give  the  jurisdiction,  the  law  may  provide  for  the  time  of 
election  to  sue  or  to  transfer  the  cause.  In  another  class  of 
cases  the  jurisdiction  is  appellate  ; but  Congress  may  provide 
for  the  transfer  of  the  cause  because  the  Constitution,  law, 
or  treaty  is  brought  in  question — that  is,  the  subject-matter 
may  give  original  or  appellate  jurisdiction.  (Martin  v.  Hunt- 
er, 1 Wheat.,  334;  The  Moses  Taylor,  4 Wall.,  429.)  Kail- 
way Co.  v . Whitton,  13  Wall.,  288.  And  to  these  cases  it 
has  been  recently  added. 

In  cases  where  the  judicial  power  of  the  United  States  can 
be  applied  only  because  they  involve  controversies  between 
citizens  of  different  States,  it  rests  with  Congress  to  deter- 
mine at  what  time  the  power  may  be  invoked,  and  upon 
what  conditions ; whether  originally  in  the  Federal  court,  or 
after  suit  brought  in  the  State  court ; and,  in  the  latter  case, 
at  what  stage  of  the  proceedings ; whether  before  issue  or 
trial  by  removal  to  a Federal  court,  or  after  judgment  upon 
appeal  or  writ  of  error.  A suit  to  annul  a will  as  a muni- 
ment of  title,  and  to  restrain  the  enforcement  of  a decree 
admitting  it  to  probate,  is  in  essential  particulars  a suit  in 
equity,  and  if  by  the  law  obtaining  in  a State,  customaiy  or 
statutory,  such  a suit  can  be  maintained  in  one  of  its*  courts, 
whatever  designation  that  court  may  bear,  it  may  be  main- 
tained by  original  process  in  the  circuit  court  of  the  United 
States,  if  the  parties  are  citizens  of  different  States.  Gaines 
v.  Fuentes,  (October  Term,  1875,)  1 Otto,  000. 

440.  “The  judicial  power.”  Neither  department  of 
the  Government  is  superior  to  the  other,  nor  can  either  right- 
fully infringe  upon  the  duties  of  the  others ; the  executive 
cannot  control  the  judiciary,  nor  the  judiciary  the  executive. 
Houston  Tap  and  Brazoria  Railroad  v.  Randolph,  24  Tex., 
317.  The  judiciary  cannot  control  the  treasurer  in  relation 
to  his  duties.  Id.  And  after  executive  officers  have  acted 
upon  a subject  matter  within  their  jurisdiction  their  decisions 
are  regarded  as  judicial,  and,  as  to  their  conclusiveness,  they 
are  judged  by  the  same  rules  as  judgments  of  courts. 

u This  proposition  (as  to  the  conclusiveness  of  a judgment) 
is  true  in  relation  to  every  tribunal  acting  judicially,  whilst 
acting  within  the  sphere  of  their  jurisdiction,  where  no  appel- 
late tribunal  is  created ; and  even  when  there  is  such  an  appel- 
late power,  the  judgment  is  conclusive  when  it  only  comes 
collaterally  into  question,  so  long  as  it  is  unreversed.  But 
directly  the  reverse  of  this  is  true  in  relation  to  the  judgment 
of  any  court  acting  beyond  the  pale  of  its  authority.  The 
principle  upon  this  subject  is  concisely  and  accurately  stated 
by  this  court  in  the  case  of  Elliott  et  al.  v.  Peirsol  et  al .,  (1 
Pet.,  340,)  in  these  words:  k Where  a court  has  jurisdiction, 
it  has  a right  to  decide  every  question  which  occurs  in  the 
cause ; and  whether  its  decision  be  correct  or  otherwise,  its 
judgment,  until  reversed,  is  regarded  as  binding  in  every 


AMBASSADORS,  440-444. 


431 


Cl.  1.] 


other  court.  But  if  it  act  without  authority,  its  judgments 
and  orders  are  regarded  as  nullities.  They  are  not  voidable, 
but  simply  void.’  ” (Wilcox  v.  Jackson,  13  Pet.,  510,  511.) 
This  was  said  in  reference  to  the  action  of  the  register  and 
receiver  of  the  general  land  office.  Wilcox  v . Jackson,  13 
Pet.,  510.  And  the  principle  seems  to  be  applicable  to  all 
official  acts.  See  United  States  v.  Jones,  8 Pet.,  375. 

44  i.  u Shall  extend  to  all  cases,  in  law  and 

EQUITY,  ARISING  UNDER  THE  CONSTITUTION,  THE  LAWS 

of  the  United  States,  and  treaties  made,  or  which 

SHALL  BE  MADE  UNDER  THEIR  AUTHORITY.”  So  if  a law 
be  in  opposition  to  the  Constitution ; if  both  the  law  and  the 
Constitution  apply  to  a particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law  disre- 
garding the  Constitution,  or  conformably  to  the  Constitution 
disregarding  the  law,  the  court  must  determine  which  of  these 
conflicting  rules  governs  the  case.  This  is  of  the  very  essence 
of  judicial  duty.  Marbury  v.  Madison,  1 Cr.,  138. 

442.  “Under  their  authority.”  The  same  form 
of  expression  “ subject  to  their  jurisdiction”  occurs  in  the 
thirteeiltli  amendment.  So  the  plural  pronoun,  “them,”  is 
used  in  the  definition  of  treason  ; and  “ under  them,”  in  the 
eighth  inhibition  upon  Congress.  Whether  or  not  this  be  any 
argument  in  favor  of  the  continued  individuality,  sovereignty, 
and  independence  of  the  States,  it  is  clear  that  the  United 
States  is  a collective,  multitudinous  plural  noun,  which,  as  an 
antecedent,  requires  a plural  pronoun.  Some  there  are  who 
write  “s/ie,”  still  more  “ i£,”  and  had  Henry  Cla5r  considered 
them  a corporation,  he  would  have  employed  “&e.”  When 
Government  or  nation  is  used  as  an  equivalent  for  the  United 
States,  of  course  a singular  verb  or  pronoun  would  be  cor- 
rect. “Tjie  United  States”  are  used  but  twice  as  a 
nominative  in  the  Constitution,  and  both  times  the  verb  is 
in  the  future  tense.  In  the  tenth  and  eleventh  amendments 
the  U nited  States  are  used.in  contradistinction  to  u the  States.” 
And  in  art.  I,  sec.  10,  clauses  2 and  3,  p.  161,  the  States  are 
prohibited  from  acting  without  the  consent  of  Congress. 

443.  By  “cases  at  common  law”  are  to  be  understood 
suits  in  which  legal  rights  are  to  be  ascertained  and  determ- 
ined, in  contradistinction  to  those  where  equitable  rights 
alone  are  recognized  and  equitable  remedies  are  adminis- 
tered. (Parsons  v.  Bedford,  3 Pet.,  447 ; Kobertson  v.  Camp- 
bell, 3 Wheat.,  212.)  Irvine  v.  Marshall,  20  How.,  565. 

444.  4 4 TO  ALL  CASES  AFFECTING  AMBASSADORS,  OTHER 
public  ministers,  and  consuls.”  Clause  2 says  that  in 
these  cases  and  those  in  wThich  a State  shall  be  a party  “the 
Supreme  Court  shall  have  original  jurisdiction.”  But  this 
does  not  conflict  with  and  render  unconstitutional  section  9 


Effect  of 
judgments. 


Suppose 
the  law 
conflicts 
with  the 
Constitu- 
tion ? 

199. 


In  what 
number  in 
grammar  is 
the  United 
States? 
Page  271. 
Page  211. 


What  is  un- 
derstood by 
cases  at 
common 
law? 


What  is  the 
rule  as  to 
ambassa- 
dors, Ac.? 

202. 


4 32 


ADMIRALTY,  444-446. 


[Art.  Ill,  Sec.  2, 


J urisdiction. 


What  are 
the  privi- 
leges of 
consuls? 

202. 


Taney’s* 
C.  C.  Dec. 


Define  the 
extent  of 
admiralty 
and  mari- 
time juris- 
diction. 

203. 


of  the  judiciary  act  of  24  September,  1789,  giving  jurisdiction 
to  the  District  Court  of  the  United  States  in  civil  cases  in 
suits  against  consuls  and  vice  consuls.  (United  States  v.  Ra- 
vara,  2 Dali.,  297.)  But  in  Marbury  v.  Madison,  1 Cr.,  137, 
the  principle  seemed  to  be  shaken,  for  it  was  said  that  the 
original  jurisdiction  was  exclusive.  And  although  this  opinion 
was  somewhat  qualified  in  Cohen  v.  Virginia,  6 Wheat.,  137, 
it  was  strongly  intimated  that  the  original  jurisdiction  was 
exclusive.  In  Osborn  v.  The  Bank  of  the  United  States,  9 
Wheat.,  820,  the  chief  justice  distinctly  said  that  the  original 
jurisdiction  is  exclusive,  and  Congress  cannot  confer  it  upon 
an  inferior  tribunal.  But  in  none  of  these  cases  was  the 
opinion  called  for.  The  point  was  brought  directly  before 
the  court  in  United  States  v.  Ortega,  11  Wheat.,  467.  But 
the  case  turned  upon  the  point  that  a consul  is  not  an 
ambassador  or  public  minister.  In  Davis  v.  Packard, 
7 Pet.,  281,  the  constitutionality  of  section  9 of  the  act 
of  1789,  which  gives  jurisdiction  to  the  district  courts  to 
the  exclusion  of  the  State  courts,  was  directly  affirmed. 
And  so  the  elementary  writers  have  generally  thought. 
(Rawle  on  the  Const.,  221,  222;  Conkling,  160;  Sergeant, 
17,  18.)  The  words  of  the  Constitution  express,  nothing 
exclusive,  nor  need  such  exclusion  be  implied ; for  the  grant 
of  jurisdiction  over  a certain  subject  matter  to  one  court  does 
not  of  itself  imply  that  that  jurisdiction  is  to  be  exclusive. 
Gittings  v.  Crawford,  Taney’s  C.  C.  Dec.,  1-10. 

445.  “Consuls.”  A consul  is  not  entitled  by  the  laws 
of  nations  to  the  immunities  and  privileges  of  an  ambassa- 
dor or,  public  minister.  He  is  liable  to  civil  suits,  like  any 
other  individual,  in  the  tribunals  of  the  country  in  which  he 
resides,  and  may  be  punished  in  its  courts  for  any  offense 
which  he  commits  against  its  laws.  (1  Kent’s  Comm.,  43, 
45  ; Wheat.  International  Law,  181.)  Gittings  v.  Crawford, 
10. 

446.  “To  ALL  CASES  OF  ADMIRALTY  OR  MARITIME 
JURISDICTION.”  The  framers  used  this  as  a phrase  well 
understood.  It  referred  to  a sj^stem  of  law  coextensive  witli 
and  operating  uniformly  in  the  whole  country.  It  leaves  no 
power  of  enlargement  or  narrowing  to  the  States.  (The  St. 
Lawrence,  1 Black,  256,  257.)  While  we  may  resort  to  the 
codes  of  other  countries,  the  power  exists  in  Congress  to 
change  the  law.  And  regulations  have  been  adopted  for 
registry,  enrollment,  license,  &c.  Congress  creates  such 
property,  and  may  protect  the  rights  and  titles  of  all  persons 
dealing  therein.  (White’s  Bank  v.  Smith,  7 Wall.,  655,  656  ; 
Aldrich  v.  Etna  Company,  8 Wall.,  491.)  The  liens  and 
privileges  of  State  laws  in  favor  of  material  men  cannot  be 
recognized  as  a part  of  the  maritime  law  of  the  land.  But 
where  the  lien  has  been  perfected,  the  material  men  may 


CONTROVERSIES,  446-448. 


433 


Cl.  1.] 


file  a libel  against  the  vessel  or  its  proceeds.  (The  General 
Smith,  4 Wheat.,  438  ; Peyroux  v.  Howard,  7 Pet.,  324; 
The  Orleans  v.  Phoebus,  11  Id.,  175 ; The  St.  Lawrence,  1 
Black,  522.)  The  Lottawanna,  21  Wall.,  579. 

Privileges  or  liens  created  by  State  law  cannot  be  enforced 
in  admiralty.  The  Lottawanna,  20  Wall.,  220. 

44?.  “Between  two  or  more  States.”  A question 
of  boundary  between  States  is  within  the  jurisdiction  con- 
ferred by  the  Constitution  on  this  court.  A question  of 
boundary  between  States  is  necessarily  a political  question 
to  be  settled  by  compact  made  by  the  political  departments 
of  the  Government.  But  under  due  form  of  government  a 
boundary  between  States  may  become  a judicial  question  to 
be  decided  by  this  court.  (Rhode  Island  v.  Massachusetts, 
12  Pet.,  724;  Missouri  v.  Iowa,  7 How.,  660;  Florida  v.  Geor- 
gia, 17  How.,  478 ; Alabama  v.  Georgia,  23  How.,  505.)  Vir- 
ginia v.  West  Virginia,  11  Wall.,  54.  55.  [This  case  contains 
a full  history  of  the  creation  of  West  Virginia  and  of  its 
boundaries.  It  was  one  of  the  important  results  of  the.  war. 
And  Missouri  v.  Kentucky,  11  Wall.,  395,  is  one  where  juris- 
diction was  taken  of  course,  and  which  is  full  of  history, 
although  no  constitutional  question  was  settled.] 

448.  “Between  a State  and  citizens  of  another 
State.”  The  first  question  which  naturally  presents  itself 
is,  whether  the  State  of  Florida  has  such  an  interest  in  the 
subject-matter  of  the  suit,  and  in  the  controversy  respecting 
the  same,  as  to  give  it  a standing  in  court.  It  is  suggested 
that  the  trustees  of  the  internal  improvement  fund  are  the* 
only  parties  legally  interested,  and  that  they  have  no  right 
to  bring  an  original  bill  in  this  court.  To  this  it  may  be  an- 
swered, in  the  first  place,  that  the  State  has  a direct  interest 
in  the  subject-matter  (the  railroad  in  question)  by  reason  of 
holding  (as  it  does)  the  four  millions  of  bonds  which  are  a 
statutory  lien  upon  the  road.  In  the  next  place,  the  interest 
of  the  State  in  the  internal  improvement  fund  is  sufficiently 
direct  to  give  it  a standing  in  court  whenever  the  interests  of 
that  fund  are  brought  before  a court  for  inquiry.  Florida  v. 
Anderson,  (Oct.  T.,  1875,)  1 Otto,  000. 

A State  here  means  the  people,  territory,  and  government. 
A State,  in  the  ordinary  term  of  the  Constitution,  is  a politic- 
al community  of  free  citizens  occupying  a territory  of  defined 
boundaries,  and  organized  under  a government  sailctioned 
and  limited  by  a written  constitution,  and  established  by  the 
consent  of  the  governed.  But  in  order  to  the  exercise  by  a 
State  of  the  right  to  sue  in  this  court  there  needs  to  be  a 
State  government  competent  to  represent  the  State  in  its 
relations  with  the  national  Government,  so  far,  at  least,  as 
the  institution  and  prosecution  of  a suit  is  concerned.  While 
Texas  was  controlled  by  a government  hostile  to  the  United 


Authori- 

ties. 


What  is  the 
rule  be- 
tween two 
or  more 
States? 


What  as  to 
controver- 
sies be- 
tween a 
State  and 
citizens  of 
another 
State  ? 


205. 


State  de- 
fined. 


434 


CONTROVERSIES,  448-450.  [Art.  Ill,  Sec.  2, 


When  a 
State  may 
not  sue. 


What  is  the 
right  of 
States  to 
sue'? 


What  is  the 
rule  as  to 
controver- 
sies be- 
tween citi- 
zens of 
different 
States  ? 
What  is  the 
rule  as  to 
jurisdic- 
tion over 
corpora- 
tions? 

206. 


States,  and  in  affiliation  with  a hostile  confederation  waging 
war  upon  the  United  States,  no  suit  instituted  in  its  name 
could  be  maintained  in  this  court.  It  was  necessary  that  the 
government  and  the  people  of  the  State  should  be  restored 
to  peaceful  relations  to  the  United  States,  under  the  Consti- 
tution, before  such  a suit  could  be  prosecuted.  Texas  v. 
White,  7 Wall.,  700;  S.  C.,  25  Tex.  Supp.,  465.  The  circuit 
courts  have  not,  but  the  Supreme  Court  has,  jurisdiction  when 
the  State  is  plaintiff.  Wisconsin  v.  Duluth,  2 Dillon,  406. 

449.  “ TO  CONTROVERSIES  BETWEEN  A STATE,  OR  CITI- 
ZENS THEREOF,  AND  FOREIGN  STATES,  CITIZENS,  OR  SUB- 
JECTS.” Expositors  of  the ' law  of  nations  unanimously 
declare,  as  the  rule  of  all  the  countries  belonging  to  the  great 
Christian  republic  of  Europe  and  America,  that  although  a 
foreign  government,  whether  republican  or  monarchical, 
cannot  be  compelled  to  enter  into  the  courts  of  any  country 
as  defendant,  yet  such  government  has  full  right  to  appear 
as  plaintiff  equally  with  any  private  person,  and  even  equally 
with  the  local  sovereign.  The  King  of  Spain’s  case,  Council 
Reports,  3Eq.,  729;  I lullet  v.  The  King  of  Spain,  1 Dow.  & 
Clark,  175;  2 Phillimore’s  Comm,  on  Int.  Law,  §§  109-113; 
Emperor  of  Brazil  v.  Robinson,  5 Dow.  Prac.  Cases,  522, 
(Queen’s  Bench;)  Queen  of  Portugal  v.  Grymes,  7 Cl.  & F., 
66;  King  of  Spain  v.  Machado,  4 Russ.,  225;  S.  C.,  2 Bligh, 
N.  S.,  31,  (Chancery;)  King  of  Spain  v.  Hullett,  1 Dow.  & 
Clark,  160,  (Chancery;)  S.  C.,  1 Clark  & Finnelly,  348, 
(House  of  Lords;)  Rothschild  v.  Queen  of  Portugal,  3 Young 
& Collier,  594,  (Exchequer;)  King  of  Two  Sicilies,  v.  Wilcox, 
1 Simons,  1ST.  S.,  (Chancery;)  Emperor  of  Austrian.  Kossuth, 
3 De  Gex,  Fisher  & Jones,  174,  (Chancery;)  King  of  Greece 
v.  Wright,  6 Dow.  Prac.  Cases,  12 ; United  States  v.  Prio- 
leau,  2 Heming  & Miller,  559,  (Chancery;)  United  States  v . 
Wagner,  Council  Reports,  2 Ch.  Ap.,  582,  (Chancery.) 

450.  “To  CONTROVERSIES  BETWEEN  CITIZENS  OF  DIF- 
FERENT States.”  The  decisions  about  corporations  being 
citizens,  in  note  206,  were  intended  to  be  limited  to  the  ques- 
tion of  citizenship  only ; and  they  do  not  decide  the  power 
of  a corporation  to  act  in  another  State.  Earle  v.  Bank  of 
Augusta,  13  Pet.,  519.  Although  a corporation  is  not  a 
citizen  within  the  provisions  of  the  Constitution,  yet  when 
rights  of  action  are  to  be  enforced  the  corporation  will  be 
considfred  a citizen  of  the  State  where  it  was  created  within 
this  clause.  (Paul  v.  Virginia,  8 Wall.,  177.)  And  it  is  a 
citizen  of  that  State  where  it  was  created,  although  it  may 
have  been  incorporated  in  another.  (The  Ohio  and  Missis- 
sippi Railroad  Company  v.  Wheeler,  1 Black,  268.)  Railway 
Company  v.  Whitton,  13  Wall.,  2S3  ; The  Railroad  Company 
v.  Harris,  12  Wall.,  65.  These  cases  hold  that  the. corpora- 
tion cannot  migrate,  but  it  may  exercise  the  faculties  allowed 


Cl.  1.] 


TRANSFER  OF  CAUSES,  450-452. 


435 


to  it  by  the  laws  of  other  States.  For  the  purposes  of  federal 
jurisdiction  it  is  regarded  as  if  it  were  a citizen  of  the  State 
where  it  was  created,  and  no  averment  or  proof  as  to  the 
citizenship  of  its  members  elsewhere  will  be  permitted. 

451.  Absolutely  concurrent.  The  jurisdiction  of 
the  courts  of  the  United  States  over  controversies  between 
citizens  of  different  States  cannot  be  impaired  by  the  laws  of 
the  States  which  prescribe  the  modes  of  redress  in  their 
courts  or  which  regulate  the  distribution  of  their  judicial 
power.  (Hyde  v.  Stone,  20  How.,  175 ; Suydam  v.  Broad- 
nax, 14  Pet.,  67 ; Union  Bank  v.  Jolly’s  Administrators,  18 
How.,  503.)  Paine  v.  Hook,  7 Wall.,  429 ; Cowles  v.  Mercer 
County,  7 Wall.,  121. 

Whenever  a general  rule  as  to  property'  or  personal  rights 
or  injuries  to  either  is  established  by  State  legislation,  its 
enforcement  by  a federal  court,  in  a case  between  proper 
parties,  is  a matter  of  course,  and  the  jurisdiction  of  the 
court  in  such  a case  is  not  subject  to  State  limitation.  Rail- 
way Company  v.  Whitton,  13  Wall.,  286.  As  the  Constitu- 
tion imposes  no  limitation  upon  the  class  of  cases  involving 
controversies  between  citizens  of  different  States,  to  which 
the  judicial  power  of  the  United  States  may  be  extended, 
Congress  may  provide  for  bringing,  at  the  option  of  either  of 
the  parties,  all  such  controversies  within  the  jurisdiction  of 
the  Federal  judiciary.  Gaines  v.  Fuentes,  (October  Term, 
1875,)  Otto,  000. 

If  legal  remedies  are  sometimes  modified  to  suit  the  changes 
in  the  laws  of  the  States  and  the  practice  of  their  courts,  it  is 
not  so  with  equitable.  The  equity  jurisdiction  conferred  on 
the  federal  courts  is  the  same  that  the  high  court  of  chancery 
in  England  possesses,  is  subject  neither  to  limitation  nor 
restraint  by  State  legislation,  and  is  uniform  throughout  the 
different  States  of  the  Union.  (Green’s  Administratrix  v. 
Creighton,  23  How.,  90;  Robinson  v.  Campbell,  3 Wheat., 
212 ; United  States  v.  Howland,  4 Wheat.,  108 ; Pratt  et  ah 
v.  Northam  et  ah,  5 Mason,  95.)  Paine  v.  Hook,  7 Wall.,  429. 
* 

452.  Transfer  of  causes.  Out  of  the  “controversies 
between  citizens  of  different  States  ” has  grown  the  statutes 
for  the  transfer  of  causes  when  the  parties  are  citizens  thus 
situated.  By  section  11  of  the  judiciary  act  the  jurisdiction 
is  given  concurrently  with  the  States,  and  the  amount  in 
controversy  must  exceed  $500.  As  such  concurrent  jurisdic- 
tion alone  would  have  somewhat  impaired  the  constitutional 
rights  of  citizens  of  the  different  States,  the  12th  section  for 
the  transfer  of  causes  was  enacted.  It  has  been  urged  that 
the  two  sections  are  identical,  and  that  no  cause  can  be  trans- 
ferred which  could  not  have  been  originally  brought  under 
the  11th  section;  but  Mr.  Justice  Story,  in  Smith  v.  Rinds, 
2 Sumner,  344,  points  out  the  differences  between  the  two 
sections. 


Domicil 
of  corpora- 
tion. 


Define  the 
rule  as  to 
concurrent 
jurisdic- 
tion. 


206. 


Equitable 

remedies. 


When  may 
causes  be 
transferred 
to  the  Fed- 
eral courts? 


436 


CONTROVERSIES,  452. 


[Art.  Ill,  Sec.  2, 


Act  of  1789. 


Of  1866. 


When  may 
the  motion 
be  made. 


The  laws 
constitu- 
tional. 


The  Gaines 
case. 

The  reason 
of  the  law. 


The  local 
prejudices. 


Section  12  of  the  judiciary  act  of  1789  declares  that  “if  a 
suit  be  commenced  in  a State  court  against  a citizen  of 
another  State,”  &c.,  the  cause  may  be  transferred  in  accord- 
ance with  the  provisions  of  the  statute.  (1  Stat.,  79 ; Brightly’s 
Dig.,  p.  128,  sec.  19.)  Section  1 of  the  act  of  27  July,  1S66, 
says  : “If  any  suit,”  &c.,  and  provides  for  a severance.  (14 
Stat.,  306;  Brightly’s  Dig.,  p.  114,  sec.  15.) 

In  the  first  act  the  motion  to  transfer  must  be  made  at  the 
time  of  entering  the  appearance ; in  the  second  it  may  be 
made  at  any  time  before  the  trial.  Section  1 of  the  act  of  2 
March,  1867,  returns  to  the  language  “a  suit,”  and  “any  con- 
troversy,” and  it  provides  for  the  change  on  account  of 
apprehended  prejudice.  And  upon  complying  with  the  con- 
ditions of  the  act  it  is  made  the  duty  of  the  State  court  “to 
proceed  no  further  in  the  suit.”  There  is  no  discretion  left 
to  the  judge.  (14  Stat.,  558 ; Brightly’s  Dig.,  p.  116,  sec.  17.) 
These  statutes  are  an  indirect  mode  by  which  the  Federal 
courts  acquire  original  jurisdiction.  And  the  constitution- 
ality of  these  several  acts  cannot  be  seriously  questioned. 
(Martin  v.  Hunter,  1 Wheat.,  334;  The  Moses  Taylor,  4 Wall., 
429.)  Kailway  Company  v.  Whitton,  13  Wali.,  288,  289 ; 
Bushnell  v.  Kennedy,  9 Wall.,  391.  Until  the  law  of  1867  the 
plaintiff  had  to  make  his  election  as  to  the  jurisdiction  at  the 
time  of  commencing  his  suit ; but  this  was  a matter  of  legis- 
lative discretion  and  expediency,  and  Congress  had  the  power 
to  allow  to  either  party  a right  to  transfer  a cause  from  the 
State  to  a Federal  court  upon  such  conditions  as  it  prescribed. 
Kail  way  v.  Whitton,  13  Wall.,  289.  As  we  have  had  occasion 
to  observe  in  previous  cases,  the  provision  of  the  Constitution 
extending  the  judicial  power  of  the  United  States  to  contro- 
versies between  citizens  of  different  States,  had  its  existence 
in  the  impression  that  State  attachments  and  State  preju- 
dices might  affect  injuriously  the  regular  administration  of 
justice  in  the  State  courts.  It  was  originally  supposed  that 
adequate  protection  against  such  influences  was  secured  by 
allowing  to  the  plaintiff  an  election  of  courts  before  suit,  and 
when  the  suit  was  brought  in  a State  court,  a like  election  to 
the  defendant  afterward.  (Railway  Co7v.  Whitton,  13  Wall., 
289.)  But  the  experience  of  parties  immediately  after  the 
late  war,  which  powerfully  excited  the  people  of  different 
States,  and  in  many  instances  engendered  bitter  enmities, 
satisfied  Congress  that  further  legislation  was  required  fully 
to  protect  litigants  against  influences  of  that  character.  It 
therefore  provided,  by  the  act  of  March  2,  1867,  (14  Stat., 
557,)  greater  facilities  for  the  removal  of  cases  involving  con- 
troversies between  citizens  of  different  States,  from  a State 
court  to  a Federal  court,  when  it  appeared  that  such  in- 
fluences existed.  That  act  declared  that  where  a suit  was 
then  pending,  or  should  afterward  be  brought  in  any  State 
court,  in  which  there  was  a controversy  between  a citizen  of 
the  State  in  which  the  suit  was  brought  and  a citizen  of  an- 


Cl.  1.] 


DISCRETION,  452,453. 


437 


other  State,  and  the  matter  in  dispute  exceeded  the  sum  of 
live  hundred  dollars,  exclusive  of  costs,  such  citizen  of  an- 
other State,  whether  plaintiff  or  defendant,  upon  making 
and  filing  in  the  State  court  an  affidavit  that  he  had  reason 
to  believe,  and  did  believe,  that  from  prejudice  or  local  in- 
fluence he  would  not  be  able  to  obtain  justice  in  the  State 
court,  might  at  any  time  before  final  hearing  or  trial  of  the 
suit,  obtain  a removal  of  the  case  into  the  circuit  court  of  the 
United  States  upon  petition  for  that  purpose  and  the  pro- 
duction of  sufficient  security  for  subsequent  proceedings  in 
the  Federal  court.  This  act  covered  every  possible  case  in- 
volving controversies  between  citizens  of  the  State  where 
the  suit  was  brought  and  citizens  of  other  States,  if  the  mat- 
ter in  dispute,  exclusive  of  costs,  exceeded  the  sum  of  five 
hundred  dollars.  It  mattered  not  whether  the  suit  was 
brought  in  a state  court  of  limited  or  general  jurisdiction. 
The  only  test  was,  did  it  involve  a controversy  between  citi- 
zens of  the  State  and  citizens  of  other  States,  and  did  the 
matter  in  dispute  exceed  a specified  amount?  And  a con- 
troversy was  involved  in  the  sense  of  the  statute  whenever 
any  property  or  claim  of  the  parties,  capable  of  pecuniary 
estimation,  was  the  subject  of  the  litigation  and  was  pre- 
sented by  the  pleadings  for  judicial  determination.  Gaines  v. 
Fuentes,  (October  Term,  1875,)  1 Otto,  000. 

Smith  v.  Rinds,  2 Sumner,  344,  only  involved  the  question 
as  to  whether  one  of  several  defendants  could  transfer  the 
cause  independently  of  the  others.  The  review  of  Straw- 
bridge  v.  Curtis,  3 Cranch,  267,  was  uncalled  for,  and  was 
only  authority  by  analogy.  Beardsley  v.  Torrey,  4 Wash. 
Circuit  Court,  286,  is  admitted  to  be  correct  within  the  sense 
of  the  case,  but  inaccurate  in  not  admitting  a distinction 
between  sections  11  and  12.  And  finally  the  whole  decision 
turned  upon  the  citizenship  of  the  grantees. 

453.  Discretion,  In  Gordon  v.  Longest,  6 Pet.,  103,  it 
is  said  : uIt  must  appear  to  the  satisfaction  of  the  State  court 
that  the  defendant  is  an  alien  or  a citizen  of  some  other  State 
than  that  in  which  the  suit  is  brought,  and  that  the  matter  in 
controversy,  exclusive  of  costs,  exceeds  five  hundred  dollars.” 
These  facts  being  established,  all  action  by  the  State  courts 
afterwards  is  coram  non  judice ; and  the  overruling  of  the 
motion  to  transfer  brought  the  case  within  the  25th  section 
of  the  judiciary  act.  When  Mr.  Justice  Miller  came  to  treat 
a case  under  the  act  of  1867,  his  argument  certainly  led  to 
the  conclusion  that  the  only  questions  for  the  consideration 
of  the  State  judge  are,  1.  The  sufficiency  of  the  affidavit.  2. 
The  residence  of  the  parties.  3.  The  amount  in  controversy. 
4.  That  the  citizenship  of  the  applicant  may  be  acquired  at 
any  time  before  the  trial  of  the  cause.  Johnson  v.  Monell, 
Woolwortli’s  C.  C.  Rep.,  393-399.  And  this  is  the  spirit  of 
the  case  of  Gaines  v . Fuentes, 


Jurisdic- 

tion. 


The  scope 
of  the  act. 


Only  test. 
454. 


Suppose 
the  court 
will  not 
transfer. 


454. 

Repeat  the 
three  rules. 


438 


FEDERAL  QUESTION,  455.  [Art.  Ill,  Sec.  2, 


What  are 
the  rule 
and  excep- 
tions as  to 
assigned 
instru- 
ments? 


The  reason 
of  the  rule. 


The  latest 
act. 


454.  Suits  upon  assigned  instruments.  Suits  upon 
notes  payable  to  a particular  individual  or  bearer  may  be 
maintained  by  the  holder  without  any  allegation  of  citizen- 
ship of  the  original  payee.  (Bullard  v.  Bell,  1 Mason,  259 ; 
Bank  of  Kentucky  v.  Wistar,  2 Peters,  321.)  So,  where  the 
assignment  was  by  will,  the  restriction  in  the  statute  is  not 
applicable  to  the  representative  of  the  decedent.  (Chapped- 
elaine  v.  Dechenaux,  4 Cranch,  308.)  And  the  assignee  of 
a chose  in  action  may  sue  in  the  circuit  court  for  a specific 
thing  or  damages,  though  the  court  would  have  no  jurisdic- 
tion of  the  suit  if  brought  by  the  assignors.  (Deshler  v. 
Dodge,  16  How.,  631.)  The  restriction  applies  only  to  con- 
tracts which  may  be  properly  said  to  have  contents;  not 
mere  naked  rights  of  action  founded  on  some  wrongful  act 
or  neglect  of  duty  to  which  the  law  attaches  damages,  but 
rights  of  action  founded  on  contracts  which  contain  within 
themselves,  some  promise  or  duty  to  be  performed.  Barney 
v.  Globe  Bank,  2 Law  Register,  new  series,  229. 

The  restriction  grew  out  of  the  apprehension  that  bonds 
and  notes,  given  by  citizens  of  the  same  State  to  each  other, 
might  be  assigned  to  the  citizens  of  another  State,  and  thus 
render  the  maker  liable  to  a suit  in  the  federal  court.  (Bank 
of  the  United  States  v.  The  Planters’  Bank  of  Georgia,  9 
Wheat.,  904;  Sere  v.  Pitot,  6 Cranch,  332.)  But  the  restric- 
tion of  section  11,  as  to  assignees,  is  not  found  in  section  12  ; 
nor  does  the  reason  for  it  exist.  There  can  be  no  fraud  upon 
the  jurisdiction;  nor  is  it  a hardship  upon  the  defendant,  but 
his  privilege,  which  he  cannot  afterwards  gainsay.  (Sayles  v. 
Northwestern  Insurance  Company,  2 Curtis,  212.)  Bushnell 
v.  Kennedy,  9 Wall.,  391-394. 

Now,  by  the  act  of  1875,  promissory  notes  and  other  nego- 
tiable paper  are  placed  upon  the  same  ground  as  foreign  bills 
of  exchange,  and  the  assignees,  being  citizens  of  a different 
State  from  the  defendant,  may  sue  in  the  circuit  courts  with- 
out reference  to  the  residence  of  the  assignors  or  original 
payees ; so,  by  the  same  act,  if  the  controversy  involve  the 
construction  of  the  Constitution,  law,  or  treaty  of  the  United 
States,  the  suit  may  be  brought  in  the  federal  courts  without 
reference  to  the  residence  of  the  parties;  and  in  all  such 
cases  either  party  may  transfer  the  cause  from  the  State  to 
the  federal  court. 

As  to  assignees.  Hill  v.  Winire,  1 Biss.,  275 ; Jenkins  v. 
Greenwald,  1 Bond,  126;  Chamberlain  v.  Eckart,  2 Biss.,  126. 


455.  The  Federal  question.  The  record  must  disclose 
that  they  are  citizens  of  different  States,  or  else  a Federal 
question  must  give  original  jurisdiction.  Christmas  v.  Rus- 
sell, 14  Wall.,  69.  If  there  be  parties  who  have  not  the  resi- 
dence, the  decree  may  be  rendered,  if  it  can,  without  preju- 
dice to  them.  Horn  r.  Lockhart,  17  Wall.,  570.  Tlie  actual 
residence  of  the  party  without  reference  to  that  of  his  family 


Cl.  1,2.] 


REMARKS,  455,  456. 


439 


controls.  Blair  v.  Western  Female  Seminary,  1 Bond,  578  ; 
United  States  v.  Thorp,  2 Bond,  350. 

Where  the  cause  had  been  removed  to  the  Circuit  Court 
under  the  act  of  1833,  (the  force  bill,)  Mr.  Justice  Nelson 
said:  “I  agree,  that  if  the  petition  and  affidavit  with  the 
certificate  of  counsel  failed  to  bring  the  cause  within  the  act 
of  Congress  providing  for  the  removal,  it  would  be  the  duty 
of  the  court,  on  motion,  to  remand  it;  and  such  order  has 
also  not  unfrequently  been  entered  in  cases  where  it  appeared 
clearly,  by  the  admission  of  the  parties  or  otherwise,  that 
they  were  not  within  the  act  of  removal.  But  in  cases  where 
the  proceedings  are  in  conformity  with  the  act,  the  removal 
is  imperative,  both  upon  the  State  and  the  Circuit  Court ; 
and  if  the  facts  are  seriously  contested,  it  must  be  done  in  a 
formal  manner,  by  pleadings  and  proofs,  in  the  latter  court. 

The  cause,  therefore,  in  question  was  properly  instituted  in 
the  State  court,  leaving  the  only  question  for  consideration 
on  this  motion  as  to  the  legal  effect  of  the  removal ; and  as 
to  that  I am  of  opinion  that,  inasmuch  as  the  act  of  Con- 
gress has  been  fully  complied  with,  it  is  not  proper,  if  it  be 
competent,  for  this  court  to  determine,  upon  motion,  the  dis- 
puted jurisdictional  facts  involving  the  right  of  legality  of 
the  removal;  and  that,  inasmuch  as  the  question  of  jurisdic- 
tion involving  them  cannot  be  raised  upon  the  pleadings,  the 
proper  place  to  hear  and  determine  them  is  on  the  trial,  where 
the  plaintiffs  will  be  at  liberty  to  take  advantage  of  the  objec- 
tion.” Dennistown  v.  Draper,  5 Blatchford,  340. 

2 In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a State 
shall  be  Party,  the  supreme  Court  shall  have  original 
J urisdiction.  In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions  and 
under  such  Regulations  as  the  Congress  shall  make. 

456.  General  remarks.  The  following  is  a very 
short  analysis  of  the  distribution  of  the  jurisdiction  of  the 
different  courts  of  the  United  States:  The  United  States  is 
divided  into  fifty-seven  districts,  for  each  of  which  is  a district 
judge  and  a clerk  for  each  place  of  holding  court.  The  Dis- 
trict Courts  have  jurisdiction  over  all  offenses  (not  capital) 
against  the  United  States;  over  piracy,  when  there  is  no 
Circuit  Court  in  the  district ; of  all  suits  for  penalties  and 
forfeitures ; of  all  suits  at  common  law  brought  by  the  proper 
officers ; of  all  suits  in  equity  to  enforce  the  internal  revenue 
tax ; of  all  debts  due  to  or  by  the  United  States ; of  all  suits 
under  the  postal  laws ; of  all  admiralty  causes  and  seizures  on 

33 


Cases. 


What  is  the 
rule  as  to 
removal 
when  the 
subject- 
matter  is 
the 

ground  ? 


In  what 
cases  does 
the  Sup- 
preme 
Court  have 
original 
jurisdic- 
tion f 


What  is  the 
jurisdic- 
tion of  the 
District 
Courts? 


440 


REMARKS,  456. 


[Art.  Ill,  Sec.  2, 


Prizes. 


Of  the  Cir- 
cuit Courts? 


By  the  new 
act  of  1875? 


Promissory 

notes. 


Service. 


Exclusive 
original 
jurisdic- 
tion of  the 


land  and  waters ; of  all  prizes ; of  all  suits  by  the  assignee  of 
debentures,  &c.;  of  all  suits  for  damages  to  person  or  prop- 
erty arising  under  the  civil  rights  and  other  laws ; of  all  suits 
to  recover  office,  with  certain  exceptions ; of  all  quo  wai'rantos ; 
of  all  suits  against  national  banking  associations ; of  all  suits 
by  aliens  for  torts  only ; of  all  suits  against  consuls  or  vice 
consuls : and  said  courts  are  courts  of  bankruptcy.  (Rev. 
Stat.,  sec.  563.) 

The  United  States  is  divided  into  nine  circuits,  for  each  of 
which  there  is  a circuit  judge,  with  the  former  jurisdiction  of 
the  associate  justices.  The  chief  justice  and  associate  justices 
are  also  respectively  assigned  to  these  circuits,  and  they  sit 
with  the  circuit  or  district  judges.  To  the  circuit  judges  is 
given  nineteen  divisions  of  jurisdiction,  (Rev.  Stat.,  sec.  21,) 
much  of  which  is  concurrent  with  the  district  courts. 

By  the  act  of  3 March,  1875,  (18  Stat.,  170,)  jurisdiction  is 
given  to  circuit  courts  of  all  cases  where  the  matter  in  con- 
trove  rsjr  exceeds  five  hundred  dollars,  or  arises  under  the 
Constitution,  laws,  or  treaties  of  the  United  States,  and  all 
other  jurisdiction  defined  under  this  article  of  the  Constitu- 
tion; and  exclusive  cognizance  of  all  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States,  except 
as  otherwise  provided  by  law,  and  concurrent  jurisdiction 
with  the  district  courts,  of  offenses  cognizable  therein.  There 
are  certain  restrictions  upon  the  powers  of  this  court.  Prom- 
issory notes,  negotiable  by  the  law  of  merchant,  are  placed 
upon  the  same  footing  as  foreign  bills  of  exchange.  If  any 
suit  arising  under  the  Constitution,  laws,  or  treaties  of  the 
United  States  is  brought  in  the  State  court,  when  it  might 
have  been  brought  in  the  United  States  circuit  court,  either 
party  may  remove  said  suit  to  said  court. 

This  act  also  provides  for  service  on  defendants  wherever 
to  be  found,  or  by  publication,  when  the  proceeding  is 
strictly  in  rem.  It  will  be  seen  that  this  is  a very  important 
act,  and  it  confers  upon  the  circuit  courts,  as  original  juris- 
diction, much  of  that  which  could  only  reach  the  Supreme 
Court  of  the  United  States  through  the  highest  court  of  the 
State,  under  sec.  25  of  the  judiciary  act  of  1789,  as  amended 
by  sec.  5 of  the  act  of  1867  and  retained  under  sec.  709  of  the 
revised  statutes.  So  that  it  would  seem  to  result  that  juris- 
diction growingoutof  matters  arising  under  the  Constitution, 
laws,  and  treaties  of  the  United  States  is  concurrent,  in  the 
first  instance,  in  the  State  and  Federal  courts,  subject  to  be 
removed  from  the  former  to  the  latter,  without  regard  to  the 
residences  of  the  parties,  and  that  the  same  jurisdiction  is 
appellate  as  heretofore.  But  the  statute  is  so  radical  that  it 
is  hardly  safe  to  venture  an  opinion  in  advance  of  judicial 
interpretation. 

The  exclusive  original  jurisdiction  of  the  Supreme  Court 
of  the  United  States  is  more  clearly  defined  in  secs.  4063- 
4066  of  the  revised  statutes.  To  give  it  appellate  jurisdic- 


Cl.  2.] 


jurisdiction,  456-458. 


441 


tion  (dependent  upon  the  amount  in  controversy)  the  mat- 
ter in  the  circuit  courts  must  have  involved  five  thousand 
dollars;  one  thousand  dollars  if  the  appeal  be  from  the  Dis- 
trict of  Columbia,  but  five  thousand  dollars  if  from  any  of 
the  Territories,  except  Washington. 

The  exclusive  jurisdiction  of  the  courts  of  the  United  States 
is  defined  in  sec.  711  of  the  revised  statutes. 

Appeals  in  equity  and  writs  of  error  in  common-law  causes 
must  be  prosecuted  within  two  years. 

A supersedeas  bond  may  be  approved  by  the  judge  of  the 
court  which  rendered  the  judgment  within  sixty  (kys,  and 
by  one  of  the  associate  justices,  it  would  seem  at  any  time 
before  judgment  of  the  Supreme  Court. 

457.  “In  oases  affecting  Ambassadors,  &c.,  and 
where  A State  shale  be  a party.”  The  Supreme 
Court  has  original  jurisdiction  only  in  the  two  classes  of 
cases  mentioned  in  this  clause.  Ex  parte  Yerger,  8 Wall., 
95,  96. 

458.  Jurisdiction.  Where  the  jurisdiction  is  exclus- 
ively appellate  its  revisory  power  is  to  be  exerted,  not  over 
its  own  judgments,  but  over  those  of  inferior  jurisdiction. 
These  it  has  the  power  to  affirm,  reverse,  and  reform,  or  to 
remand  the  cause  for  a new  trial  and  a more  definite  decision ; 
but  the  statute  has  conferred  upon  it  no  authority  to  revise 
its  own  judgments  upon  the  merits  or  to  effect  any  material 
modification  to  any  material  thing  therein  determined  at  a 
subsequent  term.  Chambers  v.  Hodges,  3 Tex.,  528 ; Cam- 
eron v . McRoberts,  3 Wheat.,  591 ; The  Bank  of  the  Com- 
monwealth v.  Wistar,  3 Pet.,  431 ; Ex  parte  Sibbald  v.  The 
United  States,  3 Pet..  491;  The  Palmyra,  12  Wheat.,  10; 
Martin  v.  Hunter,  7 Wheat.,  355,  cites  Hudson  v.  Guest ier,  7 
Cranch,  1;  Browder  v.  McArthur,  7 Wheat.,  58,  59;  The 
Santa  Maria,  10  Wheat.,  443 ; and,  in  the  House  of  Lords, 
Burnas  v.  Donegan,  3 Dow.,  P.  C.,  157  ; and,  in  Yew  York, 
Ex  relatione  The  Attorney  General  v.  The  Mayor  and  Aider- 
men  of  Yew  York  City,  25  Wend.,  253 ; and  also  Jackson  v. 
Ashton,  10  Pet.,  481 ; Ex  parte  Fentenberry  v.  Foquer,  5 
Ark.,  202  ; Rawdon  et  at.  v.  Real  Estate  Bank,  5 Ark.,  573. 
This  limitation  upon  the  authority  of  the  court  will  not  pre- 
vent the  correction  of  clerical  errors  or  mistakes,  or  defects 
of  form,  or  the  addition  of  such  clause  as  may  be  necessary 
to  carry  out  the  judgment  of  the  court,  or  to  declare  a judg- 
ment null  and  void  which  was  rendered  in  a case  not  legally 
before  the  court.  Chambers  v.  Hodges,  3 Tex.,  528.  But 
not  for  errors  of  fact  or  law  after  the  term  at  which  they 
have  been  rendered,  unless  for  clerical  mistakes.  Cameron 
v.  McRoberts,  3 Wheat.,  591.  Or  to  reinstate  a cause  dis- 
missed by  mistake.  The  Palmyra,  12  Wheat.,  10. 

The  doctrine  of  the  want  of  power  after  the  expiration  of 


Supreme 

Court. 


Time. 


Supersedeas. 


Exclusive 

jurisdic- 

tion. 


What  is  the 
rule  as  to 
revisory 
power? 


Clerical 

errors. 


After  ex- 


442 


JURISDICTION,  458-460.  [Art.  Ill,  Sec.  2, 3, 


piration  of 
the  term. 


What  is  the 
limitation 
as  to  the 
appellate 
power  ? 


What  is  the 
effect  of  re- 
pealing 
section  25 
of  the  judi- 
ciary act? 


How  must 
the  ques- 
tion have 
been  raised 
in  the  State 
Court? 


the  term  was  affirmed  in  Rich  Minnesota  and  Northwestern 
Railroad  Company,  21  How.,  82;  Washington  Bridge  Com- 
pany v.  Stewart,  3 How.,  413;  Peck  v.  Sanderson,  18  How., 
42 ; Sibbald  v.  The  United  States,  2 How..  455.  When  an 
act  of  Congress  which  gives  appellate  jurisdiction  in  a given 
class  of  cases  is  repealed  pending  appeals,  such  appeals  must 
be  dismissed,  upon  the  principle  that  u when  an  act  of  the 
legislature  is  repealed  it  must  be  considered,  except  as  to 
actions  passed  and  closed,  as  if  it  never  existed.  (Dwarris 
on  Statutes,  538 ; Norris  v.  Crocker,  13  How.,  429 ; Insurance 
Company  v.  Ritchie,  5 Wall.,  541.)  Ex  parte  McCardle,  7 
Wall.,  514. 

459,  u In  all  other  cases  before  mentioned  the 
Supreme  Court  shall  have  appellate  jurisdiction, 

BOTH  AS  TO  LAW  AND  FACT,  WITH  SUCH  EXCEPTIONS  AND 
UNDER  SUCH  REGULATIONS  AS  THE  CONGRESS  MAY  PRE- 
SCRIBE.” Congress  having  regulated  this  jurisdiction  in 
certain  classes  of  cases,  this  affirmative  expression  excepts 
all  other  cases  to  which  the  judicial  power  of  the  United 
States  extends  than  those  enumerated.  (Wiscart  v.  Dauchy, 
3 Dali.,  321 ; Durosseau  v.  United  States,  6 Cranch,  307 ; 
The  Lucy,  8 Wall.,  307;  Ex  parte  McCardle,  6 Wall.,  318  ; 
S.  C.,  7 Wall.,  506.)  Murdock  v.  Memphis,  20  Wall.,  620. 

460.  u Jurisdiction.”  Section  2 of  the  amendatory  act  of 
5 February  1867,  repealed  section  25  of  the  judiciary  act  of 
1789.  What  of  the  old  law  is  omitted  is  no  longer  law. 
(Revised  Statutes,  sec.  — .)•  Those  federal  questions  (as  they 
are  called)  are  in  regard  to  the  validity  or  construction  of  the 
Constitution,  treaties,  statutes,  commissions,  or  authority  of 
the  Federal  Government.  But  in  repealing  the  last  clause, 
which  in  terms  limited  the  power  of  the  Supreme  Court  in 
reversing  the  judgments  of  the  State  courts  for  errors  appa- 
rent on  the  face  of  the  record,  and  those  alone  which  respected 
Federal  questions,  and  omitting  that  clause  from  the  substi- 
tuted section,  it  does  not  follow  that  it  was  intended  to  enact 
affirmatively  the  thing  which  that  clause  had  prohibited. 
Murdock  v.  Memphis,  20  Wall.,  618,  619. 

The  question  must  have  been  raised  and  decided  by  the 
State  courts,  or  its  decision  must  have  been  necessary  to  a 
decree.  It  must  have  been  against  the  right  claimed  under 
the  Constitution,  treaties,  laws,  or  authority  of  the  United 
States.  These  tilings  appearing,  this  court  has  jurisdiction, 
and  must  examine  whether  the  right  was  correctly  adjudi- 
cated by  the  State  court;  and  if  so.  the  judgment  must  be 
affirmed ; and  if  erroneously  decided  upon  the  Federal  ques- 
tion, then  this  court  must  further  inquire  whether  there  is 
any  other  matter  adjudged  by  the  State  court  sufficiently 
broad  to  sustain  its  judgment,  notwithstanding  its  error 
upon  the  Federal  question.  If  there  be,  the  judgment  must 


Cl.  2,  3,1,2.] 


CONFISCATION,  460,  461. 


443 


be  affirmed,  without  inquiring  into  the  soundness  of  the  de- 
cisions upon  other  matters  and  issues.  If  the  question  of 
Federal  law  is  controlling — no  other  controlling  matter  has 
been  decided  by  the  State  courts — then  this  court  will  reverse 
the  judgment  and  render  a judgment  or  remand,  as  the  cir- 
cumstances may  require.  Murdock  v.  Memphis,  20  Wall., 
635,  636. 

3 The  Trial  of  all  Crimes,  except  in  Cases  of  Im- 
peachment, shall  be  by  Jury;  and  such  Trial  shall 
be  held  in  the  State  where  the  said  Crimes  shall 
have  been  committed;  but  when  not  committed 
within  any  State,  the  Trial  shall  be  at  such  Place  or 
Places  as  the  Congress  may  by  Law  have  directed. 

Section  3.  1 Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or 
in  adhering  to  their  Enemies,  giving  them  Aid  and 
Comfort.  No  Person  shall  be  convicted  of  Treason 
unless  on  the  Testimony  of  two  Witnesses  to  the 
same  overt  Act,  or  on  Confession  in  open  Court. 

2 The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason 
shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

461.  u Except  during  the  life  of  the  person 
attainted.”  Under  the  act  of  17  July,  1862,  (the  confis- 
cation act,)  and  the  explanatory  joint  resolution  of  the  same 
date,  only  the  life  estate  of  the  person  upon  whose  offense 
the  land  had  been  seized  was  subject  to  condemnation  and 
sale.  Consequently  a decree  condemning  the  fee  could  have 
no  greater  effect  than  to  subject  the  life  estate  to  sale.  The 
purchaser  was  bound  to  know  the  law.  (Bigelow  v.  De  For- 
est, 9 Wall.,  339.)  The  estate  of  the  offending  party  and  no 
other  could  be  seized.  The  res  was  seized,  not  as  in  admi- 
ralty, for  its  own  offense,  but  for  the  offense  of  the  owner. 
Consequently,  the  condemnation  is  subject  to  all  part  own- 
erships, and  to  all  mortgages  and  liens.  Day  v.  Mico,  18 
Wall.,  160-162. 

The  heirs  of  the  party  whose  property  is  seized  are  not 
estopped  by  the  fact  that  the  offending  party  was  barred 
from  recovering  against  the  judgment  of  seizure.  Bigelow 
v.  Forest,  9 Wall.,  352. 

The  doctrine  of  these  cases  approved.  Under  the  act  of 


New  rule. 


Where  are 
crimes  to 
be  tried? 
Page  209, 
notes  212- 
214. 


What  is 
treason? 
Pages  211, 
212.  Notes 
215,  216. 


What 

means  for- 
feiture, ex- 
cept duriDg 
the  life  of 
the  of- 
fender? 


The  confis- 
cation 
cases. 


444 


CONFISCATION,  461 


[Art.  Ill,  Sec.  3, 


Wallach’s 

case. 

Pike. 


The  court 
in  Wal- 
lach’s case. 


The  joint 
resolution, 


Congress  the  court  had  no  power  to  order  a sale  which  should 
confer  upon  the  purchaser  rights  outlasting  the  life  of  F.  F. 
Had  it  done  so  it  would  have  transcended  its  jurisdiction. 
And  although  it  had  jurisdiction  over  the  party  and  the  sub- 
ject-matter, its  judgment  as  to  the  excess  of  power  is  null. 
Ex  parte  Lange,  18  Wall.,  176,  177. 

In  Wallach’s  Heirs  v.  Van  Riswick,  (October  Term,  1875,) 
1 Otto,  000,  Albert  Pike,  for  the  heirs,  exhausted  the  whole 
learning  of  the  common  and  civil  law  upon  the  subject  of 
attainder  and  forfeiture  for  crime.  His  position,  in  short, 
vras  that,  by  the  forfeiture  the  Crown  took  the  property  by 
right  of  reversion,  as  the  lord  originally  did,  upon  the  failure 
of  the  tenant  to  perform  services,  or  at  his  death ; and  it  lay 
in  the  grace  of  the  Crown  to  grant  the  land  at  the  death  of 
the  traitor  to  his  heirs ; and  that  when  by  any  statute  the 
forfeiture  was  not  to  extend  beyond  the  life  of  the  offender, 
the  law  followed  the  previous  custom.  No  grant  to  the  heirs 
was  necessary,  for  they  took,  as  heirs,  at  the  offender’s  death 
by  virtue  of  the  saving.  (Brown  v.  Waite,  2 Mod.,  180.)  So 
it  was  insisted  that  by  the  act  of  Congress  to  punish  treason 
and  confiscate  the  property  of  rebels,  the  whole  estate  of  the 
rebel  passed  by  the  confiscation ; there  was  nothing  left  for 
the  rebel  to  convey,  but  at  his  death  the  property  passed  to 
the  heirs  as  if  by  descent.  To  support  these  and  other  like 
general  propositions,  were  cited  Lovel’s  Case,  Plowden,  477  ; 
Walsingham’s  Case,  Id.,  552,  561 ; Brown  v.  Waite,  2 Mod., 
130;  Statute  5th  Eliz.,  chap.  11:  18  Eliz.,  chap.  1;  Foster’s 
Crown  Law,  222 ; Thornby  v.  Fleetwood,  1 Comyns,  207 ; 
Strange,  318;  Lord  De  la  Warre’s  Case,  11  Co.,  1 b.;  Earl 
of  Derby’s  Case,  1 Ld.  Kaym.,  355;  Wheatley  v . Thomas,  1 
Levinz,  74;  Sheffield  v.  Ratclifle,  Hob.,  335  a.;  Burgess  v. 
Wheate,  Eden,  128;  2 Wash,  on  Real  Prop.,  6S5,  688,  (391,) 
*393,  *395;  Williams,  *222;  Fearne  Conting.  Rem.,  210; 
Darbison  v.  Beaumont,  1 Peirre  William,  229 ; Brooking  v. 
White,  2 W.  Blackst.,  1010;  2 Washburn,  51;  Chandler 
Jour,  of  Pari.,  Ho.  of  Comm.,  XVIIT,  193,  195,  205 ; Han- 
sard’s Pari.  Hist.  VI,  796 ; Aikman’s  Hist,  of  Scotland,  V, 
57J ; Burnet’s  Hist,  of  His  Own  Times,  II,  837,  838 ; Ma- 
cauley’s  Hist,  of  Eng.,  Ill,  241,  242;  Hansard’s  Pari.  Hist. 
XIII,‘  706  /,  791  ff,  825,  855 ; Dowtie’s  Case,  3 Coke,  10 ; 
Page’s  Case,  8 Coke,  52;  Pandects  XL VIII,  49,  207,  §3,  20, 
10;  Marcade’  Explic.,  1,  120-127,  141. 

To  this  argument  the  court  responded,  that  the  act  of 
1862  is  not  to  be  construed  exclusively  by  itself.  Contem- 
poraneously with  its  approval  a joint  resolution  was  passed 
by  Congress,  and  approved,  explanatory  of  some  of  its  pro- 
visions, and  declaring  that  “ no  proceedings  under  said  act 
should  be  so  construed  as  to  work  a forfeiture  of  the  real 
estate  of  the  offender  beyond  his  natural  life.”  The  act  and 
the  joint  resolution  are,  doubtless,  to  be  construed  as  one 
act,  precisely  as  if  the  latter  had  been  introduced  into  the 


CONFISCATION,  461. 


445 


Cl.  2.] 


former  as  a proviso.  It  was  doubted  by  some,  even  in  high 
places,  whether  Congress  had  power  to  enact  that  any  for- 
feiture of  the  land  of  a rebel  should  extend  or  operate  beyond 
his  life.  The  doubt  was  founded  on  the  provision  of  the 
Constitution,  in  section  3d,  article  3d,  that  44  no  attainder  of 
treason  shall  work  corruption  of  blood  or  forfeiture  except 
during  the  life  of  the  person  attainted.”  It  was  not  doubted 
that  Congress  might  provide  for  forfeitures  effective  during 
the  life  of  an  offender.  The  doubt  related  to  the  possible 
duration  of  a forfeiture,  not  to  the  thing  forfeited  or  to  the 
extent  and  efficiency  of  the  forfeiture  "while  it  continued. 
The  resolution  should  be  so  construed  as  to  leave  it  in  accord 
with  the  general  and  leading  purpose  of  the  act  of  which  it 
is  substantially  a part,  for  its  object  was  not  to  defeat  but  to 
qualify. 

The  words  of  the  resolution  are  not  exactly  those  of  the 
constitutional  ordinance,  but  both  have  the  same  meaning, 
and  both  seek  to  limit  the  extent  of  forfeitures.  In  England 
attainders  of  treason  worked  corruption  of  blood  and  perpet- 
ual forfeiture  of  the  estate  of  the  person  attainted,  to  the  dis- 
inheriting of  his  heirs,  or  of  those  who  would  otherwise  be 
his  heirs.  Thus  innocent  children  were  made  to  suffer  because 
of  the  offense  of  their  ancestor.  When  the  Federal  Consti- 
tution was  framed  this  was  felt  to  be  a great  hardship,  and 
even  rank  injustice.  For  this  reason  it  was  ordained  that  no 
attainder  of  treason  should  work  corruption  of  blood  or  for- 
feiture, except  during  the  life  of  the  person  attainted.  No 
one  ever  doubted  it  was  a provision  introduced  for  the  benefit 
of  the  children  and  heirs  alone;  a declaration  that  the  chil- 
dren should  not  bear  the  iniquity  of  the  fathers.  Its  purpose 
has  never  been  thought  to  be  a benefit  to  the  traitor,  by  leav- 
ing in  him  a vested  interest  in  the  subject  of  forfeiture.  The 
statute  of  5th  Elizabeth,  chapter  11,  44  against  the  clipping, 
washing,  rounding,  and  filingof  coins,”  declared  those  offenses 
to  be  treason,  and  enacted  that  the  offender  or  offenders  should 
suffer  death  and  lose  and  forfeit  all  his  or  their  goods  and 
chattels,  and  also  44  lose  and  forfeit  all  his  and  their  lands  and 
tenements  during  his  or  their  natural  life  or  lives  only.” 
The  statute  of  18th  Elizabeth,  chapter  1,  enacted  the  same 
provision.  Each  of  these  statutes  provided  that  no  attainder 
under  it  should  work  corruption  of  blood  or  deprive  the  wife 
of  an  offender  of  her  dower.  The  statute  of  7 Anne,  ch.  21, 
is  similar.  They  all  provide  for  a limited  forfeiture — limited 
in  duration,  not  in  quantity.  And  certainly  no  case  has  been 
found  in  which  it  has  been  held  that  either  statute  intended 
to  leave  in  the  offender  an  ulterior  estate  in  fee  after  a for- 
feited life  estate,  or  any  interest  whatever  subject  to  his  dis- 
pensing power.  In  Lord  Lovel’s  case,  Plowden,  488,  it  was 
said  by  Harper,  Justice,  44  the  act  (of  attainder)  is  no  more 
than  an  instrument  of  conveyance,  when  by  it  the  posses- 
sions of  one  man  are  transferred  over  to  another.”  44  The 


One  act. 


The  limita- 
tion. 


English 

analogies. 


Statutes. 


Prece- 

dents. 


446 


CONFISCATION,  461 . [Art.  Ill,  IV,  Sec.  3, 1, 


Forfeiture. 


Former 
cases  ex- 
plained. 


Constitu- 
tionality of 
the  law 
doubted. 


act  conveys  it  (the  land  forfeited)  to  the  King,  removes  the 
estate  out  of  Lovel  and  vests  it  entirely  in  the  King.”  In 
Burgess  v.  Wheate,  1 Eden,  201,  the  Master  of  the  Rolls  said, 
“the  forfeiture  operated  like  a grant  to  the  King.  The 
Crown  takes  an  estate  by  forfeiture  subject  to  the  engage- 
ments and  incumbrances  of  the  person  forfeiting.  The 
Crown  holds  in  this  case  as  a royal  trustee,  (for  a forfeiture 
itself  is  sometimes  called  a roj^al  escheat.)  * * * If  a for- 
feiture is  regranted  by  the  King  the  grantee  is  a tenant  in 
capite,  and  all  mesne  tenure  is  extinct.”  (See  also  Brown 
v.  Waite,  2 Mod.,  133.)  In  Bigelow  v.  Forrest,  9 Wall.,  339, 
and  Day  v.  Micou,  18  Wall.,  156,  some  expressions  were  used 
indicating  an  opinion  that  what  was  sold  under  the  confisca- 
tion acts  was  a life  estate  carved  out  of  a fee.  The  language 
was  perhaps  incautiously  used.  We  certainly  did  not  intend 
to  hold  that  there  was  anything  left  in  the  person  whose  es- 
tate had  been  confiscated.  In  Lord  De  La  Warre’s  case,  11 
Coke,  1,  a,  it  was  resolved  by  the  justices  “that  there  was  a 
difference  betwixt  disability  personal  and  temporary  and  a 
disability  absolute  and  perpetual ; as  where  one  is  attainted 
of  treason  or  felony,  that  is  an  absolute  and  perpetual  disa- 
bility, by  corruption  of  blood,  for  any  of  his  posterity  to  claim 
any  inheritance  in  fee  simple,  either  as  heir  to  him  or  to  any 
ancestor  above  him ; but  when  one  is  disabled  by  Parliament 
(without  any  attainder)  to  claim  the  dignity  for  his  life,  it  is 
a personal  disability  for  his  life  only,  and  his  heir  after  his 
death  may  claim  as  heir  to  him  or  to  any  ancestor  above 
him.”  (See  also  Wheatley  v.  Thomas,  Levinz,  74.)  Wallach 
v.  Van  Riswick,  (October  Term,  1875,)  1 Otto,  000.) 

To  the  editor  it  has  always  seemed  that  the  attainder  of 
treason  which  works  corruption  of  blood  or  forfeiture,  and 
that  only  during  the  life  of  the  person  attainted,  had  to  fol- 
low the  conviction  of  treason  as  defined  in  the  Constitution ; 
and  that  the  judgment  of  the  forfeiture  of  property  must  be 
based  upon  the  conviction  of  the  party.  In  other  words,  such 
a conviction  is  a condition  precedent.  But  the  court  having 
given  effect  to  the  confiscation  act,  which  presented  the 
anomaly  of  being  a proceeding  in  rem , not  for  any  wrong  of 
the  property,  but  the  supposed  and  unascertained  treason  of 
the  owner,  this  view  need  not  be  argued.  The  precedents 
only  give  effect  to  the  act  of  Congress,  without  passing  upon 
its  constitutionality.  And  the  act  and  the  precedents  only  go 
to  illustrate  the  maxim  that  amidst  arms  constitutions  and 
laws  are  silent;  and,  indeed,  they  become  so  smothered  by 
the  conflict  that  it  is  very  difficult  to  bring  the  blind  adher- 
ents to  precedents  back  to  first  principles.  It  is  due  to  the 
court  to  say  that  the  unconstitutionality  of  the  act  seems 
never  to  have  been  urged  before  it,  or  if  urged,  it  was  met  by 
the  inconsistent  theory  of  “ public  enemies.” 


Cl.  2.] 


GENERAL  PRINCIPLE,  462-465. 


447 


ARTICLE  IV. 

Section  1.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial 
Proceedings  of  every  other  State.  And  the  Con- 
gress may  by  general  Laws  prescribe  the  Manner 
in  which  such  Acts,  Records,  and  Proceedings  shall 
be  proved,  and  the  Effect  thereof. 

462.  u Judicial  proceedings.”  Notice  to  the  defend- 
ant, actual  or  constructive,  is  essential  to  the  jurisdiction  of 
all  courts,  and  the  better  opinion  is,  that  a judgment  ren- 
dered without  notice  may  be  shown  to  be  void  when  brought 
collaterally  before  the  court.  Nations  v.  Johnson,  24  How., 
203. 

463.  Indiana  divorce  cases.  The  decree  rendered  in 
Indiana,  so  far  as  it  related  to  the  real  property  in  question, 
could  have  no  extra-territorial  effect ; but,  if  valid,  it  bound 
personally  those  who  were  parties  in  the  case,  and  could  have 
been  enforced  in  the  situs  rei , by  the  proper  proceedings 
conducted  there  for  that  purpose.  (Sutphen  v.  Fowler,  9 
Paige,  280;  Massie  v . Watts,  6 Cr.,  148,  158;  Swann  v. 
Fownereau,  3 Yes.,  jr.,  44 ; Portarlington  v.  Soulby,  3 Mylne 
& Keene,  104;  Monroe  v.  Douglass,  4 Sanf.  Ch.,  185;  Shat- 
tuck  v.  Cassidy,  3 Edw.  Ch.,  152;  Story’s  Eq.,  §§  743,  744.) 
Cheever  v.  Wilson,  9 Wall.,  121. 

The  courts  of  the  United  States  take  judicial  notice  of  the 
laws  and  judicial  decisions  of  the  several  States.  (Pennington 
v.  Gibson,  16  How.,  80.)  Cheever  v.  Wilson,  9 Wall.,  121. 

If  a judgment  for  divorce  is  conclusive  in  a State  where  it 
is  rendered,  it  is  equally  conclusive  everywhere  in  the  courts 
of  the  United  States.  (2  Story  on  the  Const.,  § 1313;  Christ- 
mas v.  Russell,  5 Wall.,  302.)  Where  the  husband  in 
a divorce  case  had  been  regularly  served  or  appeared, 
it  is  immaterial  that  they  resided  in  different  States.  (Ditson 
v.  Ditson,  4 Rhode  Island,  87 ; 2 Bishop  on  Mar.  and  Div., 
475 ; Barber  v.  Barber,  21  How.,  582.)  Cheever  v.  Wilson, 
9 Wall.,  121,  122. 

464.  Federal  question.  When  the  highest  State  court 
decides  against  the  validity  of  a State  judgment,  it  necessa- 
rily decides  against  this  provision  of  the  Constitution  and  the 
act  of  Congress,  and  that  gives  this  court  jurisdiction  under 
the  25th  section  of  the  judiciary  act.  Green  v.  Van  Buskirk, 
5 Wall.,  312 ; S.  C.,  7 Wall.,  145. 


What  credit 
shall  be 
given  to  the 
public  acts 
of  other 
States  ? 
What  is  the 
power  of 
Congress  ? 
Page  213, 
notes  218- 
220. 

What  is  the 
necessity 
of  notice  ? 


What  is  the 
effect  of  de- 
crees for 
divorce  ? 


How  far  is 
the  judg- 
ment con- 
clusive? 


How  is  the 
Federal 
question 
involved? 


465.  General  principle.  The  rule  in  Mills  v.  Duryee,  Settled 
7 Cr.,  481,  has  never  been  departed  from.  It  was  affirmed  rules- 


448 


CHATTELS,  465,  466. 


[Art.  VI. 


Authori-  In  Christmas  v.  Bussell,  5 Wall.,  290;  and  is  now  reaf- 
ties*  firmed.  Green  r.  Van  Buskirk,  7 Wall.,  147, 148.  The  legal 

effect  must  be  such  as  the  court  where  the  judgment  was 
rendered  would  have  given.  Id. 

What  of  a judgment  by  attachment  is  valid  to  sell  the  property  on 
by  attach-9  which  a lien  was  acquired  by  the  levy.  And  if  by  the  law  of 
ment?  the  State  such  a sale  pass  title,  the  title  is  good  in  another 
State.  (Cochran  i>.  Fitch,  1 Sanf.  Ch.,  146;  Kane  v.  Cook, 
8 Cal..  449.)  Green  v.  Van  Buskirk,  7 Wall.,  149.  If  the 
court  had  jurisdiction  the  decree  of  condemnation  and  sale 
is  conclusive.  (Hall  v.  Williams,  6 Pick.,  332.)  Green  v . 
Van  Buskirk,  7 Wall.,  149. 

But  a judgment  in  attachment  only  binds  the  property 
condemned.  If  there  be  no  personal  service  or  notice,  and 
no  appearance,  execution  cannot  be  levied  on  other  property 
not  attached,  nor  can  it  be  the  foundation  of  an  action.  Same 
authorities;  Paschal’s  Dig.  of  Decisions,  §§  4094-4100. 

What  of  466.  As  TO  chattels.  The  fiction  that  the  law  of  dom- 
wMch*  af-tS  draws  the  defendant’s  personal  property  after  him  wher- 
fect  chat-  ever  situated,  yields  whenever  it  is  necessary  for  the  purposes 
tels?  of  justice  that  the  actual  situs  of  the  thing  shall  be  examined. 

(Story’s  Confl.  of  Laws,  §§  379,  383,  384 ; The  People  v.  The 
Commissioner  of  Taxes,  23  Y.  Y.,  225 ; Guillander  v.  Howell, 
35  Y.  Y.,  657.)  Green  r.  Van  Buskirk,  7 Wall.,  149. 

The  jurisdiction  of  a foreign  court  over  the  person  or  the 
subject-matter  embraced  in  the  judgment  or  decree  of  such 
court  is  always  open  to  inquiry,  and,  in  this  respect,  the 
court  of  another  State  is  to  be  regarded  as  a foreign  court. 
The  record  of  such  a judgment  does  not  estop  the  parties 
from  demanding  such  an  inquiry.  (Thompson  v.  Whitman, 
18  Wall.,  457.)  In  Knowles  v.  The  Gas-Light  Company,  19 
Wall.,  58,  we  further  held,  in  line  with  the  decision  in  Thomp- 
son v.  Whitman,  that  the  record  of  a judgment  showing  ser- 
vice of  process  on  the  defendant  could  be  contradicted  and 
disproved.  Hall  v.  Lanning,  (October  Term,  1872,)  1 Otto,  000. 
How  do  Domestic  judgments  (as  was  shown  in  Thompson  v . Wliit- 
an™fbrei  n man)  stand  on  a different  footing  from  foreign  judgments, 
j^udgment^  If  regular  on  their  face,  and  if  appearance  has  been  duly  en- 
stand?  tered  for  the  defendant  by  a responsible  attorney,  though  no 
process  has  been  served  and  no  appearance  authorized,  they 
will  not  necessarily  be  set  aside,  but  the  defendant  will  some- 
times be  left  to  his  remedy  against  the  attorney  in  an  action 
for  damages ; otherwise  the  plaintiff  might  lose  his  securit}r 
by  the  act  of  an  officer  of  the  court.  (Denton  v.  Yoyes,  6 
Johns.,  296;  Grazebrook  v.  McCreedie,  9 Wend.,  437.)  But 
even  in  this  case  it  is  the  more  usual  course  to  suspend  pro- 
ceedings on  the  judgment  and  allow  the  defendants  to  plead 
to  the  merits  and  prove  any  just  defense  to  the  action.  In 
any  other  State,  however,  except  that  in  which  the  judgment 
was  rendered,  the  facts  could  be  shown,  notwithstanding  the 


Sec.  1.] 


JUDGMENT,  466,  467. 


449 


recitals  of  the  record,  and  the  judgment  would  be  regarded 
as  null  and  void  for  want  of  jurisdiction  of  the  person.  Hall 
v.  Lanning,  (October  Term,  1875,)  1 Otto,  000. 

The  validity  of  a judgment  rendered  under  the  New  York 
partnership  law,  when  prosecuted  in  another  State,  against 
one  of  the  defendants  who  resided  in  the  latter  State  and 
was  not  served  with  process,  though  charged  as  a copartner 
of  a defendant  residing  in  New  York  who  was  served,  was 
brought  in  question  in  this  court  in  December  term,  1850,  in 
D’Arcy  v.  Ketchuin,  11  How.,  165.  This  court  decided  that 
the  act  of  Congress  was  intended  to  prescribe  only  the  effect 
of  judgments  where  the  court  by  which  they  were  rendered 
had  jurisdiction ; and  that  by  international  law  a judgment 
rendered  in  one  State,  assuming  to  bind  the  person  of  a cit- 
izen of  another,  was  void  within  the  foreign  State  where  the 
defendant  had  not  been  served  with  process  or  voluntarily 
made  defense,  because  neither  the  legislative  jurisdiction 
nor  that  of  the  courts  of  justice  had  binding  force.  Hall  v. 
Lanning,  (October  Term,  1875,)  1 Otto,  000. 

467.  General  view  of  the  principles  as  to  go- 
ing behind  the  judgment.  Without  that  provision  of 
the  Constitution  of  the  United  States  which  declares  that 
“full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
State,”  and  the  act  of  Congress  passed  to  carry  it  into  effect, 
it  is  clear  that  an  interstate  record  would  not  be  conclusive 
as  to  the  facts  necessary  to  give  the  justices  of  Monmouth 
county  jurisdiction,  whatever  might  be  its  effect  in  New 
Jersey.  Thompson  v.  Whitman,  18  Wall.,  461.  In  any  other 
state  it  would  be  regarded  like  any  foreign  judgment ; and  as 
to  a foreign  judgment  it  is  perfectly  well  settled  that  the  in- 
quiry is  always  open,  whether  the  court  by  which  it  was  ren- 
dered had  jurisdiction  of  the  person  or  the  thing.  “Upon 
principle,”  says  Chief  Justice  Marshall,  “it  would  seem  that 
the  operation  of  every  judgment  must  depend  on  the  power 
of  the  court  to  render  that  judgment;  or.  in  other  words,  on 
its  jurisdiction  over  the  subject  matter  which  it  has  deter- 
mined. In  some  cases  that  jurisdiction  unquestionably  de- 
pends as  well  on  the  state  of  the  thing  as  on  the  constitution 
of  the  court.  If  by  any  means  whatever  a prize  court  should 
be  induced  to  condemn,  as  prize  of  war,  a vessel  which  was 
never  captured,  it  could  not  be  contended  that  this  con- 
demnation operated  a change  of  property.  Upon  principle, 
then,  it  would  seem  that,  to  a certain  extent,  the  capacity 
of  the  court  to  act  upon  the  thing  condemned,  arising  from 
its  being  within,  or  without,  its  jurisdiction,  as  well  as  the 
constitution  of  the  court,  may  be  considered  by  that  tribunal 
which  is  to  decide  on  the  effect  of  the  sentence.”  (Rose  v. 
Himely,  4 Cranch,  269.)  To  the  same  effect  see  Story  on 
the  Constitution,  chap.  29.  (1  Greenl.  Ev.,  § 540.)  Thomp- 


Nullity. 


Partners. 


The  root 
of  the  mat- 
ter. 


What  are 
the  general 
principles 
as  to  going 
behind  the 
judgment? 


450 


JUDGMENT,  467. 


[Art.  VI, 


Domestic. 


Mills  and 

Duryee 

qualified. 


The  con- 
tradictory 
casse  ex- 
plained. 


Who  has 
the  burden 
of  proof? 


son  v . Whitman,  18  Wall.,  461.  Mills  v.  Duryee,  7 Cranch, 
484,  does  not  change  the  rule.  (Com.  on  Const.,  §1313.) 
“It  ” (the  Constitution)  “did  not  make  the  judgments  of  other 
States  domestic  judgments  to  all  intents  and  purposes,  but 
only  gave  a general  validity,  faith,  and  credit  to  them  as 
evidence.  No  execution  can  issue  upon  such  judgments  with- 
out a new  suit  in  the  tribunals  of  other  States.  And  they 
enjoy  not  the  right  of  priority  or  lien  which  they  have  in 
the  State  where  they  are  pronounced,  but  that  only  which 
the  lex  fori  gives  to  them  by  its  own  laws  in  then*  character 
of  foreign  judgments.”  (Story’s  Confl.  of  Laws,  § 609.) 
“The  doctrine  in  Mills  v.  Duryee  is  to  be  taken  with  the 
qualification  that  in  all  instances  the  jurisdiction  of  the  court 
rendering  the  judgment  may  be  inquired  into,  and  the  plea 
of  nil  debet  will  allow  the  defendant  to  show  that  the  court 
had  no  jurisdiction  over  his  person.  It  is  only  when  the 
jurisdiction  of  the  court  in  another  State  is  not  impeached, 
either  as  to  the  subject  matter  or  the  person,  that  the  record 
of  the  judgment  is  entitled  to  full  faith  and  credit.  The 
court  must  have  had  jurisdiction  not  onty  of  the  cause , but 
of  the  parties , and  in  that  case  the  judgment  is  final  and 
conclusive.”  The  learned  commentator  adds,  however,  this 
qualifying  remark : “A  special  plea  in  bar  of  a suit  on  a 
judgment  in  another  State,  to  be  valid,  must  deny,  by  posi- 
tive averments,  every  fact  which  would  go  to  show  that  the 
court  in  another  State  had  jurisdiction  of  the  person  or  of  the 
subject  matter.”  (See  also  2 Kent’s  Comm,  95,  note,  and 
cases  cited;  Thompson  v.  Whitman,  18  Wall.,  462.) 

In  Hampton  v.  McConnell,  3 Wheat.,  234,  this  court  re- 
iterated the  doctrine  of  Mills  v.  Duryee,  that  “the  judg- 
ment of  a State  court  should  have  the  same  credit,  validity, 
and  effect  in  every  other  court  of  the  United  States  which  it 
had  in  the  State  courts  where  it  was  pronounced ; and  that 
whatever  pleas  would  be  good  in  a suit  therein  in  such 
State,  and  none  others,  could  be  pleaded  in  any  court  in 
the  United  States.’’  But  in  the  subsequent  case  of  M’El- 
moyle?;.  Cohen,  13 Pet.,  312,  the  court  explained  that  neither 
in  Mills  v.  Duryee  nor  in  Hampton  v,  McConnell  was  it  in- 
tended to  exclude  pleas  of  avoidance  and  satisfaction,  such 
as  payment,  statute  of  limitations,  &c. ; or  pleas  denying  the 
jurisdiction  of  the  court  in  which  the  judgment  was  given; 
and  quoted,  with  approbation,  the  remark  of  Justice  Story, 
that  “the  Constitution  did  not  mean  to  confer  a new  power 
of  jurisdiction,  but  simply  to  regulate  the  effect  of  the  ac- 
knowledged jurisdiction  over  persons  and  things  within  the 
State. 

The  party  assailing  the  judgment  should  have  shown  that 
the  counsel  who  appeared  were  not  employed  by  the  defend- 
ant, according  to  the  doctrine  held  in  the  cases  of  Shumway 
v.  Stillman,  6 Wend.,  453;  Aldrich  v.  Kinney,  4 Conn.,  380; 
and  Price  v.  Ward,  1 Dutcher,  225.  The  remark  of  the  court 


Sec.  1.] 


JUDGMENT,  467. 


451 


that  the  judgment  could  not  be  attacked  in  a collateral  pro- 
ceeding was  unnecessary  to  the  decision,  and  was,  in  effect, 
overruled  by  the  subsequent  cases  of  D’Arcy  v.  Ketchum,  11 
How.,  165,  and  Webster  v.  Reid,  11  How.,  437.  Thompson 
v.  Whitman,  18  Wall.,  464. 

In  the  subsequent  case  of  Webster  v.  Reid,  11  How.,  437, 
the  plaintiff*  claimed  by  virtue  of  a sale  made  under  judg- 
ments in  behalf  of  one  Johnson  and  one  Brigham  against 
“the  owners  of  half-breed  lands  lying  in  Lee  county,”  Iowa 
Territory,  in  pursuance  of  a law  of  the  Territory.  The  de- 
fendant offered  to  prove  that  no  service  had  ever  been  made 
upon  any  person  in  the  suits  in  which  the  judgments  were 
rendered,  and  no  notice  by  publication  as  required  by  the 
act.  This  court  held  that  as  there  was  no  service  of  process 
the  judgments  were  nullities.  Perhaps  it  appeared  on  the 
face  of  the  judgments  in  that  case  that  no  service  was  made ; 
but  the  court  held  that  the  defendant  was  entitled  to  prove 
that  no  notice  was  given,  and  that  none  was  published. 

In  Harris  v.  Hardeman,  14  How.,  334,  which  was  a writ  of 
error  to  a judgment  held  void  by  the  court  for  want  of  ser- 
vice of  process  on  the  defendant,  the  subject  now  under  con- 
sideration was  gone  over  by  Mr.  Justice  Daniel  at  some 
length,  and  several  cases  in  the  State  courts  were  cited  and 
approved,  which  held  that  a judgment  may  be  attacked  in  a 
collateral  proceeding  by  showing  that  the  court  had  no  juris- 
diction of  the  person,  or,  in  proceedings  in  rem , no  jurisdic- 
tion of  the  thing.  Amongst  other  cases  quoted  were  those 
of  Borden  v.  Fitch,  15  Johns.,  141,  and  Starbuck  v.  Murray, 
5 Wend.,  156 ; and  from  the  latter  the  following  remarks 
were  quoted  with  apparent  approval  : “But  it  is  contended 
that  if  other  matter  may  be  pleaded  by  the  defendant  he  is 
estopped  from  asserting  anything  against  the  allegation  con- 
tained in  the  record.  It  imparts  perfect  verity,  it  is  said,  and 
the  parties  to  it  cannot  be  heard  to  impeach  it.  It  appears 
to  me  that  this  proposition  assumes  the  very  fact  to  be  estab- 
lished which  is  the  only  question  in  issue.  For  what  pur- 
pose does  the  defendant  question  the  jurisdiction  of  the 
court?  Solely  to  show  that  its  proceedings  and  judgments 
are  void,  and  therefore  the  supposed  record  is  in  truth  no 
record.  * * The  plaintiffs  in  effect  declare  to  the  defend- 
ant->-the  paper  declared  on  is  a record,  because  it  says  you 
appeared,  and  you  appeared  because  the  paper  is  a record. 
This  is  reasoning  in  a circle.” 

In  Christmas  v.  Russell,  5 Wall.,  290,  where  the  court  de- 
cided that  fraud  in  obtaining  a judgment  in  another  State  is 
a good  ground  of  defense  to  an  action  on  the  judgment,  it 
was  distinctly  stated  in  the  opinion  that  such  judgments 
are  open  to  inquiry  as  to  the  jurisdiction  of  the  court  and 
notice  to  the  defendant.  (P.  305.)  And  in  a number  of 
cases  in  which  was  questioned  the  jurisdiction  of  a court, 
whether  of  the  same  or  another  State,  over  the  general 


Collateral 

proceed- 

ings. 


Where 
there  was 
no  service? 


May  such 
judgments 
be  attacked 
by  collater- 
al proceed- 
ings? 


For  fraud 
and  want  of 
jurisdic- 
tion. 


[Art.  VI,  Sec.  1,  2, 


452 


Jurisdic- 

tion. 


The  bottom 
of  the  prin- 
ciple. 


New  Jer- 
sey. 


JUDGMENT,  467. 

subject-matter  in  which  the  particular, case  adjudicated  was 
embraced,  this  court  has  maintained  the  same  general  lan- 
guage. Thus,  in  Elliott  v.  Peirsol,  1 Pet.,  328,  340,  it  was 
held  that  the  circuit  court  of  the  United  States  for  the  dis- 
trict of  Kentucky  might  question  the  jurisdiction  of  a county 
court  of  that  State  to  order  a certificate  of  acknowledgment 
to  be  corrected,  and  for  want  of  such  jurisdiction  to  regard 
the  order  as  void.  Justice  Trimble,  delivering  the  opinion 
of  this  court  in  that  case,  said  : u Where  a court  has  jurisdic- 
tion it  has  a right  to  decide  every  question  which  occurs  in 
the  cause,  and  whether  its  decision  be  correct  or  otherwise, 
its  judgment,  until  reversed,  is  regarded  as  binding  in  every 
other  court.  But  if  it  act  without  authority,  its  judgments 
and  orders  are  regarded  as  nullities.  They  are  not  voidable, 
but  simply  void.” 

The  same  views  were  repeated  in  The  United  States  v. 
Arredondo,  2 Pet.,  279 ; Voorhees  v.  Bank  U.  S.,  10  Pet., 
475;  Wilcox  v.  Jackson,  13  Pet.,  511;  Shriver’s  Lessee  v. 
Lynn,  2 How.,  59,  60;  Hickey’s  Lessee  v.  Stewart,  3 How., 
762,  and  Williamson  v.  Berry,  8 How.,  540.  In  the  last  case 
the  authorities  are  reviewed,  and  the  court  say  : u The  juris- 
diction of  any  court  exercising  authority  over  a subject  may 
be  inquired  into  in  every  other  court  when  the  proceedings  in 
the  former  are  relied  upon  and  brought  before  the  latter  by  a 
party  claiming  the  benefit  of  such  proceedings ; ” and  u the 
rule  prevails,  whether  the  decree  or  jndgment  has  been 
given  in  a court  of  admiralty,  chancery,  ecclesiastical  court, 
or  court  of  common  law,  or  whether  the  point  ruled  has 
arisen  under  the  laws  of  nations,  the  practice  in  chancery,  or 
the  municipal  laws  of  States.”  Thompson  v.  Whitman,  18 
Wall.,  468,  469. 

No  courts  have  more  decidedly  affirmed  the  doctrine  that 
want  of  jurisdiction  may  be  shown  by  proof  to  invalidate  the 
judgments  of  the  courts  of  other  States  than  have  the  courts 
of  Sew  Jersey.  (Moulin  v.  Insurance  Co.,  2 Zabriski,  222  ; 
1 Dutcher,  57;  Price  v.  Ward,  Id.;  225;  and  as  lately  as 
November,  1870,  in  the  case  of  Mackay  v.  Gordon,  34  New 
Jersey  Kep.,  286.)  Thompson  v.  Whitman,  18  Wall.,  470. 

“Every  independent  government,”  says  the  chief  justice, 
“ is  at  liberty  to  prescribe  its  own  methods  of  judicial  pro- 
cess and  to  declare  by  what  forms  parties  shall  be  brought 
before  its  tribunals.  But  in  the  exercise  of  this  power  no 
government,  if  it  desires  extra  territorial  recognition  of  its 
acts,  can  violate  those  rights  which  are  universally  esteemed 
fundamental  and  essential  to  society.  Thus  a judgment  by 
the  court  of  a State  against  a citizen  of  such  State,  in  his  ab- 
sence, and  without  any  notice,  express  or  implied,  would,  it 
is  presumed,  be  regarded  in  every  external  jurisdiction  as 
absolutely  void  and  unenforceable.  Such  would  certainly  be 
the  case  if  such  judgment  was  so  rendered  against  thecitizcn 
of  a foreign  State.”  (Mackay  v.  Gordon,  34  N.  J.,  286.) 
Thompson  v.  Whitman,  17  Wall.,  470. 


Cl.  1,2,  3.] 


fugitives,  468,  469. 


453 


Section  2.  1 The  Citizens  of  each  State  shall  be  en- 
titled to  all  Privileges  and  Immunities  of  Citizens  in 
the  several  States. 

468.  44 The  citizens  of  each  State.”  Corporations 
are  not  citizens  within  the  meaning  of  this  clause.  Paul  v . 
Virginia,  8 Wall.,  187.  The  cases  cited  in  note  220,  § 12,  are 
confined  in  express  terms  as  to  questions  of  jurisdiction. 
(Bank  of  United  States  v.  Deveraux,  5 Cr.,  61 ; Bank  of  Au- 
gusta v.  Earle,  13  Pet.,  586.) 

469.  44  Privileges  and  immunities.”  Special  privi- 
leges enjoyed  by  citizens  in  their  own  State  (such  as  the  rights 
of  an  incorporated  bank)  are  not  secured  in  other  States  by 
this  provision.  Paul  v.  Virginia,  8 Wall.,  180. 

A corporation,  being  the  mere  creation  of  local  law,  can 
have  no  legal  existence  beyond  the  limits  of  the  sovereignty 
where  created.  It  cannot  migrate  to  another  State,  anil 
can  only  sue  there  by  local  comity.  (Earle  v.  Augusta,  13 
Pet.,  586.)  Paul  v.  Virginia,  8 Wall.,  181. 

All  the  civil  rights  and  obligations  conferred  or  imposed  by 
the  laws  of  a State  upon  its  own  citizens  maybe  enjoyed  and 
must  be  submitted  to  by  the  citizens  of  other  States,  when- 
ever the  action  of  a State  tribunal  is  invoked  for  their  adjust- 
ment or  enforcement.  It  is  not  a matter  of  mere  comity 
among  States,  but  it  is  a constitutional  guaranty.  Ward  v. 
McKenzie,  33  Tex.,  314. 

The  Supreme  Court  will  not  define  and  describe  those  privi- 
leges and  immunities  in  a general  classification,  but  will  de- 
cide each  case  as  it  comes  up.  Ward  v.  Maryland,  12  Wall., 
418 ; Conner  v.  Elliott,  18  How.,  591.  And  for  further  cita- 
tions than  in  the  previous  notes,  but  which  lead  to  the  same 
results,  see  Cooley’s  Const.  Lim.,  15,  note  4. 

A State  cannot  impose,  for  the  privilege  of  doing  business 
within  its  limits,  a heavier  tax  upon  non-residents  than  is 
required  of  residents.  Woodruff*  v.  Parham,  8 Wall.,  139; 
Hinson  v.  Lott,  8 Wall.,  151;  Ward  v.  Maryland,  12  Wall., 
418. 

2 A person  charged  in  any  State  with  Treason^ 
Felony,  or  other  Crime,  who  shall  flee  from  Justice, 
and  be  found  in  another  State,  shall,  on  Demand  of 
the  executive  Authority  of  the  State  from  which  he 
fled,  be  delivered  up,  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

3 No  Person  held  to  Service  or  Labor  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 


What  are 
the  privi- 
leges of 
citizens  ? 

220. 


How  far  are 
corpora- 
tions citi- 
zens ? 


What  are 
privileges 
and  im- 
munities? 


General 

principle. 


220,  221. 


Taxes. 


How  as  to 
fugitives 
from  jus- 
tice ? 


How  about 
fugitives 
from  labor? 


454 


TERRITORY,  470-473.  [Art.  IV,  Sec.  2,  3, 


Service. 


How  are 
new  States 
admitted, 
and  with 
what  re- 
strictions? 

229. 

230. 


Certain 

States. 

229. 

230. 


What  is  the 
power  of 
Congress 
over  terri- 
tory ? 

231. 

232. 


The  dis- 
cretion. 


What  are 
the  rights 
of  the  in- 
habitants? 


What  has 


in  consequence  of  any  Law  or  Regulation  therein, 
be  discharged  from  such  Service  or  Labor,  but  shall 
be  delivered  up  on  Claim  of  the  Party  to  whom  such 
Service  or  Labor  may  be  due. 

Section  3.  1N’ew  States  may  be  admitted  by  the 
Congress  into  this  Union  ; but  no  new  State  shall 
be  formed  or  erected  within  the  Jurisdiction  of  any 
other  State;  nor  any  State  be  formed  by  the  Junc- 
tion of  two  or  more  States,  or  Parts  of  States,  with- 
out the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

470.  “New  States.”  Iowa,  Wisconsin,  and  Minnesota 
were  formed  out  of  the  northwestern  territory.  For  an  in- 
teresting history  and  discussion  about  the  rights  of  the  inhab- 
itants of  these  territories,  see  Sibley’s  case,  2 Contested 
Elections,  102-106. 

2 The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting 
the  Territory  or  other  Property  belonging  to  the 
United  States ; and  nothing  in  this  Constitution 
shall  be  so  construed  as  to  Prejudice  any  Claims  of 
the  United  States,  or  of  any  particular  State. 

471.  “To  dispose  of.”  The  disposal  must  be  left  to 
the  discretion  of  Congress.  The  power  over  the  whole  pub- 
lic lands  is  vested  in  Congress  without  limitation.  United 
States  v.  Gratiot,  14  Pet.,  525,  538. 

472.  u Territory  ” as  a government.  For  an  interest- 
ing history  of  the  subject,  see  the  discussion  upon  the  con- 
tinued existence  of  an  organized  territory  after  a part  of 
Wisconsin  had  been  admitted  as  a State.  The  creation  of 
a State  out  of  a portion  of  an  organized  territory  does  not 
destroy  the  organized  rights  of  the  inhabitants  not  embraced 
in  the  State.  The  governor  may  remove  into  the  remaining 
territory  and  order  an  election  for  a member  of  Congress, 
and  the  delegate  will  be  entitled  to  his  seat.  And  it  would 
seem  that  the  territorial  delegate  may  serve  after  the  com- 
plete State  organization.  Sibley’s  case,  (1848,)  3 Contested 
Elections,  102-108,  which  cites  Fearing’s  case  from  Ohio. 

473.  The  subject  historically  considered.  The 


4- 


Cl.  3, 1,2.] 


TERRITORY,  473. 


455 


theory  upon  which  the  various  governments  for  portions 
of  the  territory  of  the  United  States  have  been  organized 
has  ever  been  that  of  leaving  to  the  inhabitants  all  the 
powers  of  self-government  consistent  with  the  supremacy  and 
supervision  of  national  authority,  and  with  certain  funda- 
mental principles  established  by  Congress.  As  early  as  1784 
an  ordinance  was  adopted  by  the  Congress  of  the  Confedera- 
tion providing  for  the  division  of  all  the  territory,  ceded  or  to 
be  ceded,  into  States,  with  boundaries  ascertained  by  the  ordi- 
nance. These  States  were  severally  authorized  to  adopt  for 
their  temporary  government  the  constitution  and  laws  of  any 
one  of  the  States,  and  provision  was  made  for  their  ultimate 
admission  by  delegates  into  the  Congress  of  the  United  States. 
We  thus  find  the  first  plan  for  the  establishment  of  govern- 
ments in  the  territories  authorized  the  adoption  of  State  gov- 
ernments from  the  start,  and  committed  all  matters  of  inter- 
nal legislation  to  the  discretion  of  the  inhabitants,  unrestricted 
otherwise  than  by  the  State  constitution  originally  adopted 
by  them. 

This  ordinance,  applying  to  all  territories  ceded  or  to  be 
ceded,  was  superseded  three  years  later  by  the  ordinance  of 
1787,  restricted  in  its  application  to  the  territory  northwest 
of  the  river  Ohio. 

It  provided  for  the  appointment  of  the  governor  and  three 
judges  of  the  court,  who  were  authorized  to  adopt,  for  the 
temporary  government  of  the  district,  such  laws  of  the  orig- 
inal States  as  might  be  adapted  to  its  circumstances.  But, 
as  soon  as  the  number  of  adult  male  inhabitants  should 
amount  to  five  thousand,  they  were  authorized  to  elect  rep- 
resentatives to  a house  of  representatives,  who  were  required 
to  nominate  ten  persons  from  whom  Congress  should  select 
five  to  constitute  a legislative  council ; and  the  house  and  the 
council  thus  selected  and  appointed  were  henceforth  to  con- 
stitute the  legislature  of  the  territory,  which  was  authorized 
to  elect  a delegate  in  Congress,  with  the  right  of  debating 
but  not  of  voting.  This  legislature,  subject  to  the  negative 
of  the  governor  and  certain  fundamental  principles  and  pro- 
visions embodied  in  articles  of  compact,  was  clothed  with  the 
full  power  of  legislation  for  the  territory. 

The  territories  south  of  the  Ohio,  in  1794,(1  Stat.,  123;)  of 
Mississippi,  in  1799,  (Ibid.,  549 ;)  of  Indiana,  in  1800,  (2  Stat., 
58 ;)  of  Michigan,  in  1805,  (Ibid.,  309 ;)  of  Illinois,  in  1809, 
(Ibid.,  514,)  were  organized  upon  the  same  plan,  except  that 
the  prohibition  of  slavery,  embodied  in  the  ordinance  of  1789, 
was  not  embraced  among  the  fundamental  provisions  in  the 
organization  of  the  territories  south  of  the  Ohio;  and  the 
people  in  the  Territories  of  Michigan,  Indiana,  and  Illinois 
were  authorized  to  form  a legislative  assembly  as  soon  as 
they  should  see  fit,  without  waiting  for  a population  of  five 
thousand  adult  males. 

Upon  the  acquisition  of  the  foreign  territory  of  Louisiana, 
34 


been  the 
theory  of 
organiza 
tion? 


Right at  the 
start,  if 
wrong  ever 
since. 


1787. 


State  the 
plan  of  or- 
ganization. 


Certain 

States. 


Louisiana. 


456 


230-232. 


Federal  ju- 
risdiction. 


Jurors. 


Alabama. 


Arkansas. 


Florida. 


Wisconsin. 


Legislative 

power. 


TERRITORY,  473.  [Art.  IV,  Sec.  3, 


in  1803,  the  plan  for  the  organization  of  the  government  was 
somewhat  changed.  The  governor  and  council  of  the  Terri- 
tory of  Orleans,  which  afterwards  became  the  State  of  Louis- 
iana, were  appointed  by  the  President,  but  were  invested 
with  full  legislative  powers,  except  as  specially  limited.  A 
district  court  of  the  United  States,  distinct  from  the  courts 
of  the  Territory,  was  instituted.  (2  Stat.,  283.)  The  rest  of 
the  Territory  was  called  the  district  of  Louisiana,  and  was 
placed  under  the  government  of  the  governor  and  judges  of 
Indiana.  (Ibid.,  287.) 

Jurisdiction  of  cases  in  which  the  United  States  were  con- 
cerned, subject  to  appeal  to  the  Supreme  Court  of  the  United 
States,  was  for  the  first  time  expressly  given  to  a territorial 
court  in  1805.  (2  Stat.,  338.)  The  Territory  of  Missouri  was 
organized  in  1812,  (2  Stat.,  743,)  and  upon  the  same  plan  as 
the  territories  acquired  by  cessions  of  the  States.  In  the  act 
for  the  government  of  this  Territory,  appears  for  the  first 
time  a provision  concerning  the  qualifications  of  jurors.  The 
sixteenth  section  of  t\yz  act  provided  that  all  free  white  male 
adults,  not  disqualified  by  any  legal  proceeding,  should  be 
qualified  as  grand  and  petit  jurors  in  the  courts  of  the  Ter- 
ritory, and  should  be  selected,  until  the  general  assembly 
should  otherwise  direct,  in  such  manner  as  the  courts  should 
prescribe. 

The  Territory  of  Alabama,  in  1817,  (3  Stat.,  371,)  was 
formed  out  of  the  Mississippi  territory,  and  upon  the  same 
plan.  The  superior  court  of  the  territory  was  clothed  with 
the  federal  jurisdiction  given  by  the  act  of  1805.  The 
Territory  of  Arkansas  was  organized  in  1819,  (3  Stat.,  493,) 
in  the  southern  part  of  Missouri  territory.  The  powers 
of  the  government  were  distributed  as  executive,  legisla- 
tive, and  judicial,  and  vested  respectively  in  the  governor, 
general  assembly,  and  the  courts.  The  governor  and 
judges  of  the  superior  court  were  to  be  appointed  by  the 
President,  and  the  governor  was  to  exercise  the  legislative 
powers  until  the  organization  of  the  general  assembly.  The 
act  for  the  organization  of  the  territorial  government  of 
Florida  made  the  same  distribution  of  the  powers  of  the  gov- 
ernment as  was  made  in  the  Territory  of  Arkansas,  and  con- 
tained the  same  provision  in  regard  to  jurors  as  the  act  for 
the  territorial  government  of  Missouri. 

In  183G  the  Territory  of  Wisconsin  was  organized  under 
an  act  which  seems  to  have  received  full  consideration,  and 
from  which  all  subsequent  acts  for  the  organization  of  terri- 
tories have  been  copied,  with  few  and  inconsiderable  varia- 
tions. 

The  language  of  the  section  conferring  the  legislative  au- 
thority in  each  of  these  acts  is  this  : 

u The  legislative  power  of  said  territory  shall  extend  to  all 
rightful  subjects  of  legislation,  consistent  with  the  Constitu- 
tion of  the  United  States  and  the  provisions  of  this  act ; but 


Cl.  2.] 


TERRITORY,  473. 


457 


no  law  shall  be  passed  interfering  with  the  primary  disposal 
of  the  soil.  No  tax  shall  be  imposed  upon  the  property  of 
the  United  States,  nor  shall  the  lands  or  other  property  of 
non-residents  be  taxed  higher  than  the  lands  or  other  prop- 
erty of  residents.” 

As  there  is  no  provision  relating  to  the  selection  of  jurors 
in  the  Constitution  or  the  organic  act,  it  cannot  be  said  that 
any  legislation  upon  this  subject  is  inconsistent  with  either. 
The  method  of  procuring  jurors  for  the  trial  of  cases  is  there- 
fore a rightful  subject  of  legislation,  and  the  whole  matter  of 
selecting,  impaneling,  and  summoning  jurors  is  left  to  the 
territorial  legislature. 

The  action  of  the  legislatures  of  all  the  territories  has  been 
in  conformity  with  this  construction.  In  the  laws  of  every 
one  of  them  from  that  organized  under  the  ordinance  of  1787 
to  the  Territory  of  Montana  are  found  acts  upon  this  subject. 
Wisconsin,  organized  April  20, 1836,  5 Stat.,  10;  Iowa,  June 
12,  1838,  5 Stat.,  235;  Oregon,  August  14, 1848,  9 Stat.,  323  ; 
Minnesota,  March  3,  1849,  9 Stat.,  403 ; New  Mexico,  Sep- 
tember 9,  1850,  9 Stat.,  446;  Utah,  September  9,  1850,  9 
Stat.,  453;  Nebraska,  May  30,  1854,  10  Stat.,  277 ; Kansas, 
May  30,  1853,  10  Stat.,  277 ; Washington,  March  2,  1853,  10 
Stat.,  172 ; Colorado,  February  28,  1861,  12  Stat.,  172 ; Ne- 
vada, March  2,  1861,  12  Stat.,  209;  Dakota,  March  2,  1861, 

12  Stat.,  239;  Arizona,  February  24,  1863,  12  Stat.,  664; 
Idaho,  March  3,  1863,  12  Stat..  808 ; Montana,  May  26, 1864, 

13  Stat.,  85. 

The  judges  of  the  supreme  court  of  tHe  territory  are  ap- 
pointed by  the  President  under  the  act  of  Congress,  but  this 
does  not  make  the  courts  they  are  authorized  to  hold  courts 
of  the  United  States.  (The  American  Insurance  Co.  v.  Can- 
ter, 1 Peters,  546;  later  case  of  Benner  v.  Porter,  9 How., 
235.)  There  is  nothing  in  the  Constitution  which  would 
prevent  Congress  from  conferring  the  jurisdiction  which 
they  exercise,  if  the  judges  were  elected  by  the  people  of  the 
territory  and  commissioned  by  the  governor.  They  might 
be  clothed  with  the  same  authority  to  decide  all  cases  arising 
under  the  Constitution  and  laws  of  the  United  States,  subject 
to  the  same  revision.  Indeed,  it  can  hardly  be  supposed  that 
the  earliest  territorial  courts  did  not  decide  such  questions, 
although  there  was  no  express  provision  to  that  effect,  as  we 
have  already  seen,  until  a comparatively  recent  period. 

There  is  nothing  in  this  opinion  inconsistent  with  the  cases 
of  Orchard  v.  Hughes,  1 Wall.,  73,  or  of  Hunt  v.  Palao,  4 
How.,  589,  properly  understood.  The  first  of  these  cases 
went  upon  the  ground  that  the  chancery  jurisdiction  con- 
ferred upon  the  courts  of  the  territories  by  the  organic  act 
was  beyond  the  reach  of  territorial  legislation  ; and  the  sec- 
ond, in  which  the  territorial  court  of  appeals  was  called  a 
court  of  the  United  States,  was  only  intended  to  distinguish 
it  from  a State  court.  (Clinton  v.  Englebrecht,  13  Wall., 
440-^aq  ^ 


Disposal  of 
the  soil,  r 


Jurors 


Historical 

acts. 


Judges  ap- 
pointed. 


Precedents. 


458 


LEGISLATURE,  474-476.  [Art.  IV- VI,  Sec.  4, 


What  does 
the  United 
States  gua- 
rantee to 
the  States  ? 


Define 
State  here. 


What  are 
the  ele- 
ments of  a 
republican 
form  of 
govern- 
ment? 

The  means. 


Recon- 

struction. 


When  may 
the  gov- 
ernor not 
be  heard  ? 


Section  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a republican  Form  of 
Government,  and  shall  protect  each  of  them  against 
Invasion;  and  on  Application  of  the  Legislature,  or 
of  the  Executive  (when  the  Legislature  cannot  be 
convened,)  against  domestic  Violence. 

474.  “The  United  States  shale  guarantee  to 
every  State.”  The  term  State  is  also  used  to  express 
the  idea  of  a people  or  political  community  as  distinguished 
from  the  Government.  In  this  sense  it  is  used  in  this  clause. 
Texas  v.  White,  7 Wall.,  700;  S.  C.,  25  Tex.  Supp.,  595,  596. 

475.  u Republican  Form  of  Government.  ’ ’ Repre- 
sentation is  one  of  the  essentials  of  a republican  form  of 
government,  and  the  United  States  cannot  fulfill  that  obli- 
gation without  guranteeing  representation  in  the  House. 
Flanders  and  Hahn’s  Case,  3 Feb.,  1863,  Dawes’s  Rep.,  3 
Contested  Elections,  446. 

In  the  exercise  of  the  power  conferred  by  the  guaranty 
clause,  as  in  the  exercise  of  every  other  constitutional  power, 
a discretion  in  the  choice  of  means  is  necessarily  allowed.  It 
is  essential  only  that  the  means  must  be  necessary  and  proper 
for  carrying  into  execution  the  power  conferred  through  the 
restoration  of  the  State  to  its  constitutional  relations  under  a 
republican  form  o#  government,  and  that  no  acts  be  done, 
and  no  authority  exerted,  which  is  either  prohibited  or  un- 
sanctioned by  the  Constitution. 

So  long  as  the  war  continued,  it  cannot  be  denied  that  the 
President  might  institute  temporary  government  within  in- 
surgent districts  occupied  by  the  national  forces,  or  take  pro- 
visional measures  in  any  State  for  the  restoration  of  State 
government  faithful  to  the  Union,  employing,  however,  in 
such  efforts  only  such  means  and  agents  as  were  authorized 
by  constitutional  laws.  But  the  power  to  carry  into  effect 
the  clause  of  guaranty  is  primarily  a legislative  power,  and 
resides  in  Congress,  though  necessarily  limited  to  cases  where 
the  rightful  government  is  subverted  by  revolutionary  vio- 
lence, or  in  imminent  danger  of  being  overthrown  by  an  op- 
posing government  set  up  by  force  within  the  State.  Texas 
v.  White,  7 Wall.,  702 ; $.  G,  25  Tex.  Supp.,  467. 

470.  “When  the  Legislature  cannot  be  con- 
vened.” The  call  of  Governor  Senter,  of  Tennessee,  was 
refused,  and  the  matter  was  referred  to  the  Reconstruction 
Committee,  upon  the  opinion  of  Judge  Advocate  General 
Ilolt,  that  as  the  Legislature  was  in  session  when  the  call 
was  made  the  call  should  have  come  from  that  body.  Action 
of  the  President,  25  March,  1870. 


PRIOR  CONTRACTS,  476,  477. 


459 


Cl.  1.] 


Authority  to  suppress  rebellion  is  found  in  the  power  to 
suppress  insurrection  and  carry  on  war;  and  authority  to 
provide  for  the  restoration  of  State  governments  under  the 
Constitution,  when  subverted  and  overthrown,  is  derived 
from  the  obligation  of  the  United  States  to  guarantee  to 
every  State  in  the  Union  a.  republican  form  of  government. 
The  latter,  indeed,  in  the  case  of  a rebellion,  which  involves 
the  government  of  a State,  and,  for  the  time,  excludes  the 
national  authority  from  its  limits,  seems  to  be  a necessary 
complement  to  the  other.  Texas  v.  White,  7 Wall.,  701;  S. 
C.,  25  Tex.  Supp.,  466,  467. 


Article  V. 

The  Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments 
to  this  Constitution,  or,  on  the  Application  of  the 
Legislatures  of  two-thirds  of  the  several  States, 
shall  call  a Convention  for  proposing  Amendments, 
which,  in  either  Case,  shall  be  valid  to  all  Intents 
and  Purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three-fourths  of  the 
several  States,  or  by  Conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mocie  of  Katification 
may  be  proposed  by  the  Congress;  provided,  that 
no  Amendment,  which  may  be  made  prior  to  the 
Year  one  thousand  eight  hundred  and  eight,  shall 
in  any  Manner  affect  the  first  and  fourth  Clauses  in 
the  ninth  Section  of  the  first  Article;  and  that  no 
State,  without  its  Consent,  shall  be  deprived  of  its 
equal  Suffrage  in  the  Senate. 

4L77.  Under  this  article  the  XIVth  and  XVth  Amend- 
ments of  this  work  have  been  adopted  since  the  first  publi- 
, cation  of  this  work. 

«• 

Article  VI. 

*A11  debts  contracted,  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall 
be  as  valid  against  the  United  States,  under  this 
Constitution,  as  under  the  Confederation. 


Where  is 
the  power 
to  suppress 
rebellion 
found? 


How  are 
amend- 
ments 
made? 


Slavery. 


Late 

amend- 

ments. 


What  of 
prior  debts 
and  en- 
gagements? 


460 


THE  CONSTITUTION,  478. 


[Art.  VI, 


What  is  the 

supreme 

law? 


Suppose  a 
law  be  not 
warranted 
by  the  Con- 
stitution ? 


The  Fede- 
ralist. 


Kerat. 


HaVburn’s 

cas«. 


2This  Constitution,  and  the  Laws  of  the  United 
States  which  shall  be  made  in  Pursuance  thereof; 
and  all  Treaties  made,  or  which  shall  be  made, 
tinder  the  authority  of  the  United  States,  shall  be 
the  supreme  Law  of  the  Land;  and  the  Judges  in 
every  State  shall  be  bound  thereby,  any  Thing  in 
the  Constitution  or  Laws  of  any  State  to  the  Con- 
trary notwithstanding. 

478.  “ The  Constitutions  the  United  States.” 
I will  now  call  attention  to  certain  leading  authorities  upon 
the  point  that  a law  passed  by  Congress  in  violation  of  the 
Constitution  is  totally  void,  and  as  to  the  discretion  vested 
in  the  President  to  decide  for  himself  the  question  of  the 
validity  of  such  a law.  I cite  first  from  the  Federalist,  No. 
76: 

“There  is  no  position  which  depends  on  clearer  principles 
than  that  every  act  of  a delegated  authority  contrary  to  the 
tenor  of  the  commission  under  which  it  is  exercised  is  void. 
No  legislative  act,  therefore,  contrary  to  the  Constitution, 
can  be  valid.”  “If  it  be  said  that  the  legislative  body  are 
themselves  the  constitutional  judges  of  their  own  powers, 
and  that  the  construction  they  put  upon  them  is  conclusive 
upon  the  other  departments,  it  may  be  answered  that  this 
cannot  be  the  natural  presumption  where  it  is  not  to  be  col- 
lected from  any  particular  provisions  of  the  Constitution.” 

I cite  next  from  No.  31  of  the  Federalist,  in  reference  to 
that  clause  of  the  Constitution  declaring  its  supremacy  and 
supremacy  of  the  laws.  It  is  said:  “ It  will  not,  I presume, 
have  escaped  observation  that  it  expressly  confines  this  su- 
premacy of  laws  made  pursuant  to  the  Constitution , which  I 
mention  merely  as  an  instance  of  caution  in  the  convention, 
since  that  limitation  would  have  been  to  be  understood  though 
it  had  not  been  expressed.” 

Chancellor  Kent,  in  the  first  volume  of  his  Commentaries, 
uses  this  language  : “But  in  this  and  all  other  countries, 
where  there  is  a written  constitution  designating  the  powers 
and  duties  of  the  legislative  as  well  as  of  the  other  depart- 
ments of  the  Government,  an  act  of  the  legislature  may  be 
void  as  being  against  the  Constitution.”  “It  is  liable  to  be 
constantly  swayed  by  popular  prejudice  and  passion,  and  it 
is  difficult  to  keep  it  from  pressing  with  injurious  weight 
upon  the  constitutional  rights  and  privileges  of  the  other  de- 
partments.” 

In  Hayburn’s  case,  2 Dali.,  407,  the  opinions  of  the  judges 
of  the  circuit  courts  of  the  United  States  for  the  districts  of 
New  York,  Pennsylvania,  and  North  Carolina  upon  the 
constitutionality  of  the  act  of  March  23,  1792,  are  reported. 


Cl.  2.] 


THE  CONSTITUTION,  478. 


461 


This  act  purported  to  confer  upon  the  judges  a power  which  Judges, 
was  not  judicial.  They  were  of  opinion  that  Congress  had 
no  authority  to  invest  them  with  any  power  except  such  as 
was  strictly  judicial,  and  they  were  not  bound  to  execute 
the  law  in  their  judicial  capacity. 

In  Calder  v.  Bull,  3 Dali.,  398,  it  is  said:  “If  any  act  of  Judicial 
Congress  or  of  the  legislature  of  a State  violates  those  consti-  Cents' 
tutional  provisions,  it  is  unquestionably  void.” 

In  Van  Horn’s  Lessees  v.  Dorrance,  2 Dali.,  308,  we  find 
the  following:  “What  are  legislatures?  Creatures  of  the 
Constitution,  they  owe  their  existence  to  the  Constitution; 
they  derive  their  powers  from  the  Constitution ; it  is  their 
commission ; and,  therefore,  all  their  acts  must  be  conform- 
able to  it,  or  else  they  will  be  void.”  “Whatever  maybe 
the  case  in  other  countries,  yet  in  this  there  can  be  no  doubt 
that  every  act  of  the  legislature  repugnant  to  the  Constitu- 
tion is  absolutely  void.”  (Stanberry  in  defense  of  the  Presi- 
dent, 2 Johnson’s  Trial,  375.) 

Chief  Justice  Marshall,  delivering  the  opinion  of  the  court  Marshall, 
in  Marbury  v.  Madison,  says  that  it  is  a proposition  too  plain 
to  be  contested  that  the  Constitution  controls  any  legislative 
act  repugnant  to  it,  or  that  the  legislature  may  alter  the 
Constitution  by  an  ordinary  act.  Between  these  alterna- 
tives there  is  no  middle  ground.  The  Constitution  is  either 
a superior,  paramount  law,  unchangeable  by  ordinary  means, 
or  it  is  on  a level  with  ordinary  legislative  acts,  and,  like 
other  acts,  is  alterable  when  the  legislature  shall  please  to 
alter  it.  If  the  former  part  of  the  alternative  be  true,  then 
a legislative  act  contrary  to  the  Constitution  is  not  law.  If 
the  latter  part  be  true,  then  written  constitutions  are  absurd 
attempts  on  the  part  of  the  people  to  limit  a power  in  its 
nature  illimitable.”  “Certainly  all  those  who  have  framed 
written  constitutions  contemplate  them  as  forming  the  fund- 
amental and  paramount  law  of  the  nation,  and  consequently 
the  theory  of  every  such  government  must  be  that  an  act  of 
the  legislature  repugnant  to  the  Constitution  is  void.” 

“Thus,  the  particular  phraseology  of  the  Constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  sup- 
posed to  be  essential  to  all  written  constitutions,  that  a law 
repugnant  to  the  Constitution  is  void ; and  that  courts  as 
well  as  oilier  departments  are  bound  by  that  instrument.” 

In  Dodge  v.  Woolsey,  18  How..  347.  348,  the  court  says : 

“The  departments  of  the  Government  are  legislative,  ex- 
ecutive, and  judicial.  They  are  co-ordinate  in  degree  to  the 
extent  of  the  powers  delegated  each  of  them.  Each,  in 
the  exercise  of  its  powers,  is  independent  of  the  other,  but 
all  rightfully  done  by  either  is  binding  upon  the  others.  The  Supreme 
Constitution  is  supreme  over  all  of  them,  because  the  people  law. 
who  ratified  it  have  made  it  so ; consequently,  anything  that 
may  be  done  unauthorized  by  it  is  unlawful.” 

Again,  in  22  IIow.,  242,  the  nullity  of  any  act  inconsistent 


462 


Constitu- 

tion. 

Discretion 
of  the  Pre- 
sident. 


No  appeal 
from  the 
President. 
165. 


As  propos- 
ed to  the 
conven- 
tion. 


Secession 

view. 


THE  CONSTITUTION,  478.  [Art.  VI, 

with  the  Constitution  is  produced  by  the  declaration  that  the 
Constitution  is  the  supreme  law. 

I will  now  refer  to  some  decisions  of  the  Supreme  Cgurt 
of  the  United  States  which  relate  more  particularly  to  the 
point  that,  as  an  executive  officer,  the  President  is  vested 
with  a discretion.  In  Marbury  v . Madison,  1 Cranch,  380,  is 
the  following : 

“By  the  Constitution  of  the  United  States  the  President 
is  invested  with  certain  important  political  powers,  in  the 
exercise  of  which  he  is  to  use  his  own  discretion,  and  is  ac- 
countable only  to  his  country  in  his  political  character  and 
to  his  own  conscience.  To  aid  him  in  the  performance  of 
these  duties,  he  is  authorized  to  appoint  certain  officers  to 
act  by  his  authority  and  in  conformity  with  his  orders.  In 
such  cases  their  acts  are  his  acts,  and  whatever  opinion  may 
be  entertained  of  the  manner  in  which  executive  discretion 
may  be  used,  still  there  exists,  and  can  exist,  no  power  to 
control  this  discretion.” 

And  in  Martin  v.  Mott,  12  Wheat.,  31,  this : 

“The  law  does  not  provide  for  any  appeal  from  the  judg- 
ment of  the  President,  or  for  any  right  in  subordinate  officers 
to  review  his  decision,  and,  in  effect,  defeat  it.  Whenever  a 
statute  gives  a discretionary  power  to  any  person,  to  be  ex- 
ercised by  him  upon  his  own  opinion  of  certain  facts,  it  is  a 
sound  rule  of  construction  that  the  statute  constitutes  him 
the  sole  and  exclusive  judge  of  the  existence  of  those  facts.” 
(Henry  Stanberry’s  speech  in  defense  of  the  President,  2 
Johnson’s  Trial,  374-376.) 

The  court  must  determine  whether  the  law  be  consistent 
with  the  Constitution.  (Hepburn  v.  Griswold,  8 Wall., 
614.) 

The  original  form  of  this  section,  as  offered  by  Luther 
Martin,  was  “that  the  legislative  acts  of  the  United  States, 
made  by  virtue  and  in  pursuance  of  the  articles  of  union 
and  all  treaties  made  and  ratified  under  the  authority  of  the 
United  States,  shall  be  the  extreme  law  of  the  respective 
States,  as  far  as  those  acts  or  treaties  shall  relate  to  the  said 
States  or  their  citizens  and  inhabitants;  and  that  the  judi- 
ciaries of  the  severel  States  shall  be  bound  thereby  in  their 
decisions,  anything  in  the  respective  laws  of  the  individual 
States  to  the  contrary,  notwithstanding.”  1 Elliott’s  De- 
bates, 107,  260.  It  received  its  present  form  from  the  Com- 
mittee on  Style  and  Revision.  1 The  War  Between  States, 
(by  Alexander H.  Stephens,)  46. 

From  this  fact  and  others,  no  better  founded,  Mr.  Stephens 
revives  the  old  argument  that  the  States,  or  rather  the  people' 
of  each  State,  possessed  an  inherent  sovereignty,  a portion 
of  which,  or  rather  the  exercise  thereof,  the  States,  not  the 
people,  delegated,  but  never  surrendered,  to  a common  “con- 
federacy,” the  General  Government,  which  grants  ir  was 
urged  the  States  could  resume  in  the  same  form  in  which 


Cl.  2.] 


TREATIES,  478,  479. 


463 


they  were  granted.  Hence  it  was  urged  that  this  clause  was  Grant  of 
not  a grant  of  power,  but  a limitation.  The  War  between  Power- 
the  States,  colloquy  1,  vol.  1. 

But  no  casuist  lias  yet  attempted  a clear  definition  of  that  Sovereign- 
indefinable  something,  “State  sovereignty.”  It  is  a theory  be- 
hind  the  Constitution  rather  than  in  it.  It  presupposes  a (In- 
soluble, instead  of  an  indissoluble,  agreement.  It  overlooks 
the  fact  that  if  the  Constitution  only  created  a contract,  a 
compact,  or  a confederacy,  it  at  the  same  time  guaranteed  to 
every  State  and  to  every  citizen  powers  coupled  with  inter- 
ests, the  violent  severance  of  which  destroys  the  harmony 
of  the  entire  structure. 


4?9.  “Treaties.”  Treaties  made  by  Congress,  under  the  whatare 
Articles  of  Confederation,  had  been  declared  by  Congress  treaties? 
and  recognized  by  most  of  the  States  to  be  the  supreme  law 
of  the  laud.  (Federalist,  No.  37 ; Ware  v.  Hylton,  3 Dali., 

199.) 

The  treaties  are  compacts  as  to  the  sovereigns  which  make 
thenf ; they  are  laws  to  the  subjects,  without  affecting  the 
allegiance  of  the  inhabitants.  (4  Elliot’s  Debates,  279.)  The 
War  between  the  States,  colloquy  1,  pp.  48,  49. 

In  1791  Mr.  Madison  wrote  as  follows:  “Treaties,  as  I How  do 
understand  the  Constitution,  are  made  supreme  over  the  they  stand 
constitutions  and  laws  of  the  particular  States,  and,  like  a ™ iaws?°n 
subsequent  law  of  the  United  States,  over  pre-existing  laws  178,  199. 
of  the  United  States;  provided,  however,  that  the  treaty  be 
within  the  prerogative  of  making  treaties,  which  no  doubt 
has  certain  limits.”  (Writings  of  Madison,  vol.  1,  p.  524.) 

Attorney  General  Akerman  upon  the  Choctaw  Treaty  of 
1866,  December  15,  1870.  The  same  principle  was  ruled 
in  The  Schooner  Peggy,  1 Or.,  37.  And,  after  reviewing 
Foster  and  Elam  v\  Neilson,  2 Pet.,  253;  Taylor  v.  Morton, 

2 Curtis’  C.  C.,  454;  6 Op.,  291 ; 7 Op..  512  ; The  British  Pri- 
soners, 1 Wood.  & Min.,  66;  4 Op.,  269;  6 Hamilton’s 
Works,  95,  Mr.  Akerman  arrived  at  the  conclusion  that 
when  a treaty  provided  for  the  issuance  of  certain  United 
States  bonds  to  the  Choctaws,  the  Secretary  of  the  Treasury 
has  the  power  to  issue  such  bonds  without  waiting  for  an 
enabling  act  of  Congress.  In  other  words,  the  treaty  be- 
comes the  law  to  the  Secretary.  The  payment  will,  of  course, 
require  an  appropriation.^  12  Op.,  357-360.  A treaty  may 
supersede  a prior  act  of  Congress,  and  an  act  of  Congress 
may  supersede  a treaty.  The  Cherokee  Tobacco,  11  Wall., 

621 ; Id.,  12  Op.,  358. 

In  the  Debates  of  the  Fortieth  and  Forty-first  Congresses 
Mr.  Lawrence  of  Ohio  and  Mr.  Butler  of  Massachusetts  held 
a different  view  in  regard  to  Indian  treaties. 


The  language  used  in  treaties  with  the  Indians  shall  never  How  con- 
be  construed  to  their  prejudice  if  words  be  made  use  of  which  strued  ? 
are  susceptible  of  a more  extended  meaning  than  their  plain 


464 


oath,  479,  480. 


[Art.  VI,  VII. 


Treaties. 


What  oath 
are  officers 
required 
to  take  ? 

242. 


Modified 

oath. 


How  many 
were  re- 
quired to 
ratify? 

243. 


import  as  connected  with  the  tenor  of  their  treaty.  (Worcester 
v.  Georgia,  6 Pet.,  582.)  The  Kansas  Indians,  5 Wall.,  760, 
referred  to  and  approved  by  Attorne}^  General  Akerman  in 
his  opinion  upon  the  Choctaw  Treaty,  15  December,  1870. 

This  clause  of  the  Constitution  is  retrospective,  afe  to  State 
constitutions,  laws,  and  treaties.  All  such  fall  before  this 
Constitution,  a law  of  Congress,  or  a treaty.  Ware  v.  Hyl- 
ton, 3 Dali.,  326,  327.  And  a treaty  may  nullify  and  make 
void  from  the  beginning  as  well  as  repeal.  Id.,  250,  282.  A 
law  does  nothing  more  than  express  the  will  of  the  nation  ; 
a treaty  does  the  same.  Id.,  281. 

3 The  Senators  and  Representatives  before,  men- 
tioned, and  the  Members  of  the  several  State  Legis- 
latures, and  all  executive  and  judicial  Officers,  both 
of  the  United  States  and  of  the  several  States,  shall 
be  bound  by  Oath  or  Affirmation,  to  support  this 
Constitution  ; but  no  religious  Test  shall  ever  be 
required  as  a Qualification  to  any  Office  or  public 
Trust  under  the  United  States. 

4§0.  14  Oath.”  The  oath  required  by  the  act  of  1 June, 
1789,  of  State  legislators  and  judicial  officers,  is  as  follows  : 
44 1,  A.  B.,  do  solemnly  swear  that  I will  support  the  Consti- 
tution of  the  United  States.”  (Rev.  Stats.,  sec.  1836.)  But 
the  test  oath  is  re-enacted  b}r  section  1756,  with  the  qualifica- 
tion in  favor  of  those  not  rendered  ineligible  by  the  XIYtli 
Amendment  to  take  the  following  oath  : 44 1,  A.  B.,  do  sol- 
emnly swear  (or  affirm)  that  I will  support  and  defend  the 
Constitution  of  the  United  States  against  all  enemies,  foreign 
and  domestic ; that  I will  bear  true  faith  and  allegiance  to  the 
same  ; that  I take  this  obligation  freely,  without  any  mental 
reservation  or  purpose  of  evasion  ; and  that  I will  well  and 
faithfully  discharge  the  duties  of  the  office  on  which  I am 
about  to  enter.  So  help  me  God.”  (Sec.  1757.)  * 

Article  YII. 

The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  Establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  Same. 

Done  in  Convention,  by  the  unanimous  Consent  of 
the  States  present,  the  seventeenth  Day  of  Sep- 
tember, in  the  Year  of  our  Lord  one  thousand 
seven  hundred  and  Eighty-seven,  and  of  the 


Cl.  2, 3.] 


SIGNERS., 


465 


Independence  of  the  United  States  of  America 
the  Twelfth.  In  "Witness  whereof,  We  have 
hereunto  subscribed  our  Names. 

GEORGE  WASHINGTON,  Preside, 

And  deputy  from  Virginia. 


New  Hampshire. 

John  Langdon, 

Nicholas  Gilman. 

Massachusetts . 
Nathaniel  Gorham, 
Rufus  King. 

New  Jersey . 

Wil:  Livingston, 

David  Brearly, 

Wm,  Paterson, 

Jona:  Dayton. 

Pennsylvania . 

B.  Franklin, 

Thomas  Mifflin, 

Robert  Morris, 

Geo:  Clymer, 

Tho:  Fitzsimons, 

Jared  Ingersoll, 

James  Wilson, 

Gouv:  Morris. 

Delaware. 

Geo:  Read, 

Gunning  Bedford,  Jun’r, 
John  Dickinson, 

Richard  Bassett, 

Jaco:  Broom. 


Connecticut. 

Wm.  Saml.  Johnson, 
Roger  Sherman. 

New  York. 

Alexander  Hamilton. 

Maryland . 

James  M’ Henry, 

Dan:  of  S^.  Thos.  Jenifer, 
Danl.  Carroll. 

Virginia. 

John  Blair. 

James  Madison,  Jr. 

North  Carolina. 

Wm.  Blount, 

Rich’d  Dobbs  Spaight, 
Hu.  Williamson. 

South  Carolina. 

John  Rutledge, 

Charles  Cotesworth 
Pinckney, 

Charles  Pinckney, 
Pierce  Butler. 

Georgia. 

William  Few' 

Abraham  Baldwin. 


The  sign' 
ers. 


Attest:  William  Jackson,  Secretary , 


466 


RELIGION,  481. 


[Amendments, 


What  is  the 
restriction 
as  to  liberty 
and  the 
press? 

245. 


What  are 
general 
State  con- 
stitutions? 
245. 


Power  of 
the  States. 


ARTICLES 


IN  ADDITION  TO  AND  AMENDMENT  OF 

THE  CONSTITUTION 

OF  THE 

UNITED  STATES  OF  AMERICA, 

Proposed  by  Congress , and  ratified  by  the  Legislatures  of  the 
several  States , pursuant  to  the  fifth  article  of  the  original 
Constitution . 

Article  I. 

Congress  shall. make  no  law  respecting  an  estab- 
lishment of  religion^or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech,  or  of 
the  press;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  Government  for  a re- 
dress of  grievances. 

481.  “Religion.”  Article  I,  sec.  4,  of  the  constitution  of 
Texas  of  1845,  reads  thus  : “All  men  have  a natural  and  inde- 
feasible right  to  worship  God  according  to  the  dictates  of 
their  own  consciences;  no  man  shall  be  compelled  to  attend, 
erect,  or  support  any  place  of  worship,  or  to  maintain  anjr 
ministry  against  his  consent;  no  human  authority  ought,  in 
any  case  whatever,  to  control  or  interfere  with  the  rights  of 
conscience  in  matters  of  religion ; and  no  preference  shall 
ever  be  given  by  law  to  any  religious  societies  or  mode  of  wor- 
ship. But  it  shall  be  the  duty  of  the  legislature  to  pass  such 
laws  as  shall  be  necessary  to  protect  every  religious  denom- 
ination in  the  peaceable  enjoyment  of  their  own  mode  of 
public  worship.”  And  so  reads  the  constitutions  of  most  of 
the  States.  There  is  nothing  in  this  article,  nor  in  any  other, 
nor  in  the  Constitution  of  the  United  States,  to  prevent  the 
legislature  from  forbidding  Ihe  pursuit  of  worldly  business 
upon  Sunday.  (State  v,  Stubbs,  20  Mo.,  214 ; Specht  v . The 


Art.  I.] 


FREE  SPEECH,  481,  482. 


467 


Commonwealth,  8 Barr,  320;  The  Commonwealth  v.  Wolf,  What  is  the 
3 Serg.  & B.,  50;  Chamberlain#.  Barnesville  and  Hudson  the6privi- 
B.  B.  Co.,  15  Ohio,  230.)  None  here  shall  be  compelled  to  lege? 
observe  the  Jewish,  Mohammedan,  Catholic,  or  Protestant 
form  of  religion,  or  to  embrace  any  at  all.  All  are  free  to 
embrace  any  religious  denomination,  civilized  or  pagan,  that 
liis  judgment  or  taste  may  dictate  as  the  best  or  preferable 
for  him.  Gabel  v.  Houston,  29  Tex.,  344,  345. 

4§2.  “ Or  ABRIDGING  THE  FREEDOM  OF  SPEECH  AND  Whatwas 
OF  the  press.”  The  statutes,  3 Edward  I,  eh.  34,  and  2 the  origin 
Bichard  II,  ch.  1,  sec.  5,  qnly  punished  the  utterance  of  Sj^ase ? 

4 • false  news”  and  “horrible  and  false  lies.”  The  sedition  p 246. 
law  of  1798  only  punished  the  writing,  publishing,  or  print- 
ing false,  scandalous,  &c.,  writings  against  the  President  or 
Congress,  and  allowed  the  truth  to  be  given  in  evidence.  (1 
St.,  596.)  The  common  law  never  punished  a verbal  slander 
criminally.  In  the  United  States,  the  people,  not  the  Gov- 
ernment, possess  the  absolute  sovereignty.  The  legislature, 
no  less  than  the  executive,  is  under  limitations  of  power. 
Encroachments  are  regarded  as  possible  from  the  one  as  well 
as  from  the  other.  Hence,  in  the  United  States,  the  great 
and  essential  rights  of  the  people  are  secured  against  legis- 
lative as  well  as  executive  ambition.  They  are  secured,  not 
by  laws  paramount  to  prerogative,  but  by  constitutions  para- 
mount to  laws.  This  security  of  the  freedom  of  the  press 
requires  that  it  should  be  exempt  not  only  from  previous 
restraint  by  the  executive,  as  in  Great  Britain,  but  from  legis- 
lative restraint  also ; and  this  exemption,  to  be  effectual,  must 
be  an  exemption  not  only  from  the  previous  inspection  of 
licenses,  but  from  the  subsequent  penalty  of  laws.  (4  Madi- 
son's Works,  542.)  Curtis  in  defense  of  the  President,  1 
Trial  of  the  President,  412. 

Mr.  Madison  very  ably  denied  that  the  freedom  of  the  press  What  is  the 
meant  the  common  law  freedom,  but  he  insisted  upon  the  right  of 
right  of  the  people  to  discuss  every  branch  of  the  public  ser-  M|d?sSon°?n? 
vice.  , 

1.  The  Constitution  supposes  that  the  President,  the  Con-  The  Con- 
gress, and  each  of  its  houses  may  not  discharge  their  trusts,  stitution. 
either  from  defect  of  judgment  or  other  causes.  Hence  they  247‘ 
are  all  made  responsible  to  their  constituents  at  the  returning 
periods  of  election  ; and  the  President,  who  is  singly  intrusted 

with  very  great  powers,  is,  as  a further  guard,  subjected  to 
an  intermediate  impeachment. 

2.  Should  it  happen  that  either  of  these  branches  of  the  Right  to 
Government  may  not  have  duly  discharged  its  trust,  it  is  expose, 
natural  and  proper  that,  according  to  the  cause  and  degree 

of  their  faults,  they  should  be  brought  into  contempt  or  dis- 
repute, and  incur  the  hatred  of  the  people. 

3.  Whether  it  has,  in  any  case,  happened  that  the  proceed-  Free  exam- 
ings  of  either  or  all  of  those  branches  evince  such  a violation  ination. 


468 


RIGHT  TO  ASSEMBLE,  482,  488.  [Amendments, 


Duty. 


Right  of 
discussion. 


Freedom 
and  despot- 
ism. 


Speeehnot 

muzzled. 


What  is  the 
origin  of 
the  right 
peaceably 
to  assem- 
ble. 


of  duty  as  to  justify  a contempt,  a disrepute,  or  hatred  among 
the  people,  can  only  be  determined  by  a free  examination 
thereof,  and  a free  communication  among  the  people  thereon. 

4.  Whenever  it  may  have  actually  happened  that  proceed- 
ings of  this  sort  are  chargeable  on  all  or  either  of  the  branches 
of  the  Government,  it  is  the  duty,  as  well  as  right,  of  intel- 
ligent and.  faithful  citizens  to  discuss  and  promulge  them 
freely,  as  well  to  control  them  by  the  censorship  of  the  pub- 
lic opinion  as  to  promote  a remedy  according  to  the  rules  of 
the  Constitution.  And  it  cannot  be  avoided  that  those  who 
are  to  apply  the  remedy  must  feel,  in  some  degree,  a con- 
tempt or  hatred  against  the  transgressing  party.  (4  Madison ’s 
Works,  547.)  Curtis  in  defense  of  the  President,  1 Trial  of 
the  President,  413. 

Unrestrained  speech  ds  as  fatal  to  liberty  as  despotism. 
44  Every  freeman  lias  an  undoubted  right  to  lay  what  senti- 
ments lie  pleases  before  the  public ; to  forbid  this  is  to  destroy 
the  freedom  of  the  press.  But,  if  he  publish  what  is  improper, 
mischievous,  or  illegal,  he  must  take  the  consequences  of  his 
own  temerity.”  (Blackstone,  1 Tucker,  App.,  297-299; 
Story’s  Commentary  on  the  Constitution,  §1880.) 

And  Chancellor  Kent  instructs  us  that  44  it  has  become  a 
constitutional  principle  in  this  country  that  every  citizen  may 
freely  speak,  write,  and  publish  his  sentiments  on  all  subjects, 
being  responsible  for  the  abuse  of  that  right ; and  that  no 
law  can  rightfully  be  passed  to  restrain  or  abridge  the  free- 
dom of  the  press.”  (1  Kent’s  Com.,  sec.  241.) 

Speech  is  not,  therefore,  of  necessity  innocent  because  it 
is  not  muzzled.  Senator  Howe,  3 Trial  of  the  President,  78. 
If  Congress  could  make  no  law  to  prevent  the  speeches  which 
Andrew  Johnson,  as  a citizen,  made,  the  Senators  cannot, 
each  enacting  a law  for  himself  in  his  own  bosom,  punish 
him  for  speaking  words  about  which  there  was  no  law,  for 
that  would  be  a dangerous  system  of  ex  post  facto  laws . 
Senator  Grimes,  3 Trial  of  the  President,  339. 

483.  44  Or  abridging  the  right  of  the  people 

PEACEABLY  TO  ASSEMBLE  AND  TO  PETITION  THE  GOVERN- 
MENT for  A redress  of  grievances.”  This  affirmance 
of  power  in  Congress  does  not  amount  to  an  affirmative  power 
to  punish  individuals  for  a disturbance  of  assemblies.  This 
power  belongs  to  the  States.  The  United  States  v.  Cruik- 
shank,  1 Woods,  327.  This  right  existed  long  before  the 
adoption  of  the  Constitution  of  the  United  States.  In  fact, 
it  is,  and  always  has  been,  one  of  the  attributes  of  citizenship 
under  a free  government.  It  44 derives  its  source,”  to  use 
the  language  of  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden, 
9 Wheat.,  211,  k4from  those  laws  whose  authority  is  acknowl- 
edged by  civilized  men  throughout  the  world.”  It  is  found 
wherever  civilization  exists.  It  was  not,  therefore,  a right 
granted  to  the  people  by  the  Constitution.  The  Government 


Art.  I,  II.] 


MILITIA,  483. 


469 


of  the  United  States  when  established  found  it  in  existence, 
with  the  obligation  on  the  part  of  the  States  to  afford  it  pro- 
tection. As  no  direct  power  over  it  was  granted  to  Congress, 
it  remains,  according  to  this  ruling,  subject  to  State  jurisdic- 
tion. Only  such  existing  rights  were  committed  by  the  peo- 
ple to  the  protection  of  Congress  as  came  within  the  general 
scope  of  the  authority  granted  to  the  National  Government. 

The  first  amendment  to  the  Constitution  prohibits  Con- 
gress from  abridging  this.  This,  like  the  other  amendments 
proposed  and  adopted  at  the  same  time,  was  not  intended  to 
limit  the  powers  of  the  State  governments  in  respect  to  their 
own  citizens,  but  to  operate  upon  the  National  Government 
alone.  (Barron  v.  The  City  of  Baltimore,  7 Pet.,  250;  Les- 
see of  Livingston  v.  Moore,  7 Pet.,  551 ; Fox  v.  Ohio,  5 How., 
434;  Smith  v.  Maryland,  18  How.,  76;  Withers  v.  Buckley, 
20  How.,  90;  Pervear  v.  The  Commonwealth,  5 Wall.,  479; 
Twitchell  v.  The  Commonwealth,  7 Wall.,  321 ; Edwards  v. 
Elliott,  21  Wall.,  557.)  It  is  now  too  late  to  question  the 
correctness  of  this  construction.  As  was  said  by  the  late 
Chief  Justice,  in  Twitchell  v.  The  Commonwealth,  (7  Wall., 
325.)  ktthe  scope  and  application  of  these  amendments  are  no 
longer  subjects  of  discussion  here.”  They  left  the  authority 
of  the  States  just  where  they  found  it,  and  added  nothing  to 
the  already  existing  powers  of  *the  United  States. 

The  particular  amendment  assumes  the  existence  of  the 
right  of  the  people  to  assemble  for  lawful  purposes  and  pro- 
tects it  against  encroachment  by  Congress.  The  right  was 
not  created  by  the  amendment ; neither  was  its  continuance 
guaranteed,  except  as  against  congressional  interference. 
For  their  protection  in  its  enjoyment,  therefore,  the  people 
must  look  to  the  States.  There  is  where  the  power  for  that 
purpose  was  originally  placed,  and  it  has  never  been  surren- 
dered to  the  United  States. 

The/ right  of  the  people  peaceably  to  assemble  for  the  pur- 
pose of  petitioning  Congress  for  a redress  of  grievances,  or 
for  anything  else  connected  with  the  powers  or  the  duties  of  the 
National  Government,  is  an  attribute  of  national  citizenship, 
and  as  such,  under  the  protection  of,  and  guaranteed,  by  the 
the  United  States.  The  very  idea  of  a government,  repub- 
lican in  form,  implies  a right  on  the  part  of  its  citizens  to 
meet  peaceably  for  consultation  in  respect  to  public  affairs, 
and  to  petition  for  a redress  of  grievances.  United  States  v. 
Cruikshank,  (October  Term,  1875,)  2 Otto,  000. 

Article  II. 

A well  regulated  Militia  being  necessary  to,  the 
security  of  a free  State,  the  right  of  the  people  to 
keep  and  bear  Arms,  shall  not  be  infringed. 


Anterior. 


Amend- 
ments con- 
fined to  the 
United 
States. 


Right  to 
assemble. 


An  attri- 
bute of  na- 
tional citi- 
zenship. 


What  are 
the  rights 
of  the  peo- 
ple to  keep 
and  bear 
arms? 


470 


LIBERTY,  484. 


[Amendments, 


Restricts 
the  Nation- 
al Govern- 
ment. 

249. 


What  of 

quartering 

troops? 


What  of  the 
right  of  the 
people  to  be 
secure 
from 

search  and 
arrest? 
251-252. 


What  are 
the  inhibi- 
tions in 
favor  of  life 
and  liberty? 
Page  258, 
notes  252- 
259. 


484.  u To  keep  and  bear  arms.”  This  is  one  of  the 
amendments  that  has  no  other  effect  than  to  restrict  the 
powers  of  the  National  Government,  leaving  the  people  to 
look  for  their  protection  against  any  violation  by  their  fellow- 
citizens  of  the  rights  it  recognizes,  to  what  is  called  in  The 
City  of  New  York  v.  Miln,  11  Pet.,  139,  the  “ powers  which 
relate  to  merely  municipal  legislation,  or  what  was,  perhaps, 
more  properly  called  internal  police,”  “not  surrendered  or 
restrained  ” by  the  Constitution  of  the  United  States.  United 
States  v . Cruikshank,  (October  Term,  1875,)  2 Otto,  000. 

Article  III. 

No  soldier  shall,  in  time  of  peace  be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor 
in  time  of  war,  but  in  a manner  to  be  prescribed  by 
law. 

Article  IY. 

The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized. 

Article  Y. 

No  person  shall  be  held  to  answer  for  a capital,  or 
otherwise  infamous  crime,  unless  on  a presentment 
or  indictment  of  a Grand  Jury,  except  in  cases  aris- 
ing in  the  land  or  naval  forces,  or  in  the  Militia, 
when  in  actual  service  in  time  of  War  or  public 
danger;  nor  shall  any  person  be  subject  for  the 
same  offense  to  be  twice  put  in  jeopardy  of  life  or 
limb;  nor  shall  be  compelled  in  any  Criminal  Case 
to  be  a. witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of 
law;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 


Art.  II-V.] 


JEOPARDY,  485,  486. 


471 


485.  44A  grand  jury.”  An  indictment  is  good  with-  indict- 
out  declaring  that  the  jurors  are  a 44 grand  jury.”  It  is  ment- 
sufficient  to  say  44 jurors  of  the  United  States.”  United 
States  v.  Williams,  1 Clifford,  5. 

486.  44  Twice  in  jeopardy.”  Jeopardy  means  hazard  Define 
or  danger,  and  it  has  reference  to  trial  and  verdict ; and  no  jeopardy, 
one  can  claim  exemption  from  a second  trial  unless  he  has 

been  tried  by  a lawful  jury,  upon  a good  indictment,  and 
acquitted  or  convicted.  (4  Blackst.  Comm.,  335;  2 Kent’s 
Comm.,  13;  Story’s  Const.,  § 532;  1 Whart.  Cr.  Law,  573; 

Vaux’s  Case,  4 Coke,  44;  Hawk.  P.  C.,  515.)  The  views  of 
Lord  Coke,  in  1 and  3 Institutes,  pp.  100,  227,  are  to  be  dis- 
regarded, or  else  understood  that  the  court  may  discharge 
the  jury  without  the  consent  of  the  defendant,  when  there 
is  an  absolute  impossibility  to  find  a legal  verdict,  such  as 
the  death  or  sickness  of  one  of  the  jurors;  that  is,  a physical 
or  moral  necessity.  And  of  this  necessity  the  court  must 
judge.  (People  v.  Olcott,  2 Johns.  Cas.,  308;  People  v. 

Goodwin,  18  Johns.,  204;  Gillespie  v.  Davis,  5 Yerg.,  320; 

United  States  v.  Perry,  9 Wheat.,  579.)  Mose^  v.  The 
State,  33  Tex.,  672-675.  Affirmed.  Taylor  v . The  State,  35 
Tex.,  109. 

No  man  can  be  twice  lawfully  punished  for  the  same  offense  Twice  pun* 
in  the  same  jurisdiction.  In  civil  cases  the  maxim  is  44  nemo  j^same 
debit  bis  vexari  pro  una  et  eodem  causa;”  in  the  criminal  offcmse. 
law,  unemo  bis  punitur  pro  eodem  delicto .”  (Hawk.  Pleas 
of  Crown,  377.)  Or  44  nemo  debit  bis  puniri  pro  uno  delicto .” 

(4  Coke  R.,  43a;  11  Id.,  956;  4 Blackst.  Comm.,  by  Shars- 
wood,  315.)  And  when  punishment  has  been  inflicted  no 
appeal  lies ; and  at  common  law  there  could  not  be  two 
trials.  After  one,  autrefois  acquit  or  autrefois  convict  was  a 
good  defense.  In  Crenshaw  v.  Tennessee,  (1  Mart.  & Yerg., 

122,)  that  punishment  for  a felony  not  capital  was  a bar  to 
all  other  felonies  not  capital,  committed  before  such  convic- 
tion, judgment,  and  execution.  And  so  in  Kentucky.  (State 
v.  Cooper,  5 Lift.,  157.)  Ex  parte  Lange,  18  Wall.,  170. 

To  prevent  State  trials  being  oppressive  in  the  hands  of  a Magna 
dominant  administration  the  common  law,  as  well  as  magna  Charta. 
charta , provided  that  one  acquittal  or  conviction  should  sat- 
isfy the  law,  and  hence  to  plead  autrefois  acquit  and  autre- 
fois convict . And  with  the  same  design  was  it  introduced 
into  our  constitutions.  (Commonwealth  v . Olds,  5 Lift., 

137.)  So  where  a party  had  been  convicted  of  arson,  he 
could  not  afterwards  be  tried  for  the  murder  of  persons 
burned  in  the  house  at  the  time.  (Cooper  v . The  State,  1 
Green.,  361.)  Such  second  punishment  for  the  same  offense 
is  contrary  to  the  nature  and  genius  of  our  Government. 

(Moore  v.  Illinois,  14  How.,  13.)  And  the  inhibition  applies 
alike  to  felonies  and  misdemeanors.  (Bishop’s  Cr.  Law,  §§ 

990,  991 ; Chit.  Cr.  Law,  pp.  452-462.)  Ex  parte  Lange, 

18  Wall.,  172,  173. 


35 


472 


PROCESS  OF  LAW,  486-488.  [Amendments, 


What  is 
guarded 
against? 


Mistrial. 


If  the  first 
judgment 
be  in  ex- 
cess of 
power? 


What 

means  due 
process  of 
law? 

257, 258. 


To  what 
does  due 
process  of 
law  refer? 


Trial  by 
jury. 


It  is  the  punishment  which  would  follow  a second  convic- 
tion which  is  guarded  against  by  the  Constitution.  And  the 
same  danger  would  exist  if  a party  could  be  twice  sentenced 
and  punished  upon  the  same  verdict.  Ex  parte  Lange,  18 
Wall.,  173. 

The  rule  does  not  mean  that  if  there  has  been  a mistrial,  or 
the  verdict  has  been  set  aside  on  the  motion  of  the  accused,  or 
upon  his  writ  of  error  successfully  prosecuted,  or  when  the 
indictment  describes  an  offense  unknown  to  the  law,  that  he 
cannot  be  tried  again.  (United  States  v.  Perez,  579;  People 
v , Casborns,  13  Johns.,  351.)  Ex  parte  Lange,  18  Wall.,  173, 
174. 

That  the  first  judgment  was  in  excess  of  power,  and  there- 
fore erroneous  or  even  void,  does  not  warrant  the  second  sen- 
tence. (Miller  v.  Finkle,  1 Parker’s  Or,  Rep.,  374.)  The 
illustration  may  be  found  in  Bigelow  v.  Forrest,  9 Wall., 
339,  and  Day  v.  Micou,  18  Wall.,  156.  Ex  parte  Lange,  18 
Wall.,  174-177;  Moseley  v.  The  State,  33  Tex.,  672-675, 
Affirmed.  Taylor  v.  The  State,  35  Tex,,  109. 

Where  a party  was  indicted  for  killing  “N.  Evans,”  and 
upon  the  trial  it  appearing  that  the  name  of  the  deceased 
was  Morgan  Evans,  whereupon,  with  leave  of  the  court,  the 
district  attorney  entered  a nolle  prosequi,  the  principle  of  the 
above  case  applied;  and,  notwithstanding  the  doubts  of 
Bishop,  (Bishop’s  Cr.  Law,  661,)  a sound  discretion  must  be 
left  to  the  court  as  to  the  nolle  prosequi.  But  the  indictment 
was  for  distinct  offenses,  and  the  “ twice  in  jeopardy”  could 
not  apply.  Taylor  v.  The  State,  35  Tex.,  109,  110. 

48?.  “Shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law.”  This  means 
judicial  process.  The  President  is  not  empowered  to  arrest 
any  one  charged  with  an  offense  against  the  United  States 
whom  he  may  believe  from  the  evidence  before  him  to  be 
guilty ; nor  can  he  authorize  any  officer,  civil  or  military,  to 
exercise  this  power.  Ex  parte  Merriman,  Taney,  C.  C., 
Dec.,  259.  To  make  imprisonment  lawful  it  must  be  either 
by  process  of  law  from  the  courts  of  judicature,  or  by  war- 
rant from  some  legal  officer  having  authority  to  commit  to 
prison.  (Blackst.  Comm.,  137.)  Id. 

488.  “Without  due  process  of  law.”  The  inhibi- 
tion to  take  private  property  for  public  use,  without  just 
compensation  or  due  process  of  law,  refers  only  to  a direct 
appropriation,  and  not  to  consequential  injuries  resulting 
from  the  exercise  of  lawful  power.  It  does  not  inhibit  laws 
that  indirectly  work  harm  and  loss  to  individuals,  such  as 
tariffs,  embargoes,  wars,  non-intercourse,  and  legal  tenders. 
Legal  Tender  Cases,  12  Wall.,  551. 

The  words  “due  course  of  law  of  the  land”  do 
not  enjoin  in  all  cases  a trial  by  jury  as  an  indispensable 


Art.  V.] 


PRIVATE  PROPERTY,  488,  489. 


473 


requisite  to  a judgment.  Judgments  by  default,  in  rem , on  Judgment 
publication,  in  equity,  admiralty,  military,  or  ecclesiastical  by  default, 
courts,  are  all  rendered  without  jury  trial,  and  are  not  in 
contravention  of  this  inhibition.  (State  v.  Alien,  2 McCord, 

55;  Cox  v.  Cox,  Peck,  448;  Baker  v.  Webb,  1 Hayw.,  49.) 

And  judgments  on  official  bonds.  (Bonne  v.  Massey,  3 Stew., 

227.)  Janes  v.  Reynolds,  2 Tex.,  252,  253.) 

Citizens  could  only  be  deprived  of  their  property  by  the  Slavery, 
due  course  of  law.  Hence  Congress  alone  could  determine 
how  and  in  what  manner  slavery  should  be  terminated. 

(Chief  Justice  Morrill.)  The  Emancipation  Cases,  31  Tex., 

519,  520.  And  to  deprive  the  citizen  of  the  obligation  of  his 
contract  given  for  slaves  would  be  to  deprive  him  of  his 
property  without  the  due  process  of  law.  Osborn  v.  Nichol- 
son, 13  Wall.,  662. 

These  decisions  are  generally  made  upon  similar  provisions  Does  the 
in  the  State  constitutions.  This  provision  of  the  Constitu-  only  to *t he 
tion  of  the  United  States  applies  only  to  the  G-eneral  Govern-  general 
ment,  and  not  to  the  States.  Withers  v.  Buckley,  20  How.,  govern- 
84.  But  these  guarantees  are  in  all  the  State  constitutions,  ment? 
go  back  of  them,  are  parts  of  the  whole  system,  and  are  uni- 
versal American  law.  (Sinnicksen  v.  Johnson,  2 Harr.  N.  J., 

129;  Gardner  v.  Newbergh,  2 Johns.  Ch.,  162.)  Pumpelly 
v.  Green  Bay  Company,  13  Wall.,  167  ; See  Paschal’s  Digest 
of  Decisions,  §§  996-998. 

489.  u NOR  SHALL  PRIVATE  PROPERTY  BE  TAKEN  FOR  Define  the 
PUBLIC  USE  WITHOUT  JUST  COMPENSATION.”  Public  use  to 

does  not  require  that  the  property  taken  shall  be  actually  property 
used . It  may  be  disused , removed , or  destroyed , and  destruc-  token  for 
tion  of  private  property  may  be  the  best  public  use  it  can  be  Publlc  use- 
put  to.  Suppose  a bridge  owned  by  a private  corporation  to 
be  so  located  as  to  endanger  our  forts  upon  the  banks  of  a 
river : to  demolish  that  bridge  for  military  purposes  would 
be  to  appropriate  it  to  public  use.  (Whiting  Book,  p.  ; 

Senate  Report  No.  412,  42  Cong.,  3 Sess.,  p.  3.) 

It  may  safely  be  assumed  as  the  settled  and  fundamental 
law  of  Christian  and  civilized  States  that  governments  are 
bound  to  make  just  indemnity  to  the  citizen  or  subject  when- 
ever private  property  is  taken  for  the  public  good,  conven- 
ience:,  or  safety.  (Grant  v.  United  States,  1 N.  & H.  Ct.  of 
Claims,  48.)  Best’s  Case,  Senate  Report  No.  412,  42  Cong., 

3 Sess.,  p.  3. 

There  are,  without  doubt,  occasions  in  which  private  prop-  Destruc- 
erty  may  occasionally  be  taken  possession  of  or  destroyed  to  ^0n^t 
prevent  it  from  falling  into  the  hands  of  the  public  enemy  ; p p r y# 
and  also  where  a military  officer  charged  with  a particular 
duty  may  impress  private  property  into  the  public  service  or 
take  it  for  public  use.  Unquestionably,  in  such  cases,  the 
Government  is  bound  to  make  full  compensation  to  the 
owner. 


474  CRIMINAL  PROSECUTIONS,  489,  490.  [Amendments, 


The  State 
must  pay. 


Eminent 

domain. 


State  the 
rights  of 
the  accus- 
ed in  crimi 
nal  prose- 
cntions. 
Page  263. 


For  what 
was  the 
Constitu- 
tion con- 


If,  as  the  above  authorities  declare,  the  State  must  pay  for 
the  property  of  a citizen  destroyed  to  prevent  it  from  falling 
into  the  hands  of  an  enemy,,  a fortiori  should  the  State  pay 
for  property  destroyed  to  prevent  a garrison  from  falling 
into  the  hands  of  an  enemy. 

Justice  Randolph,  in  the  case  of  The  American  Print 
Works  v.  Lawrence,  1 Zabriski,  248,  says  that  in  “ cases 
where  the  State,  by  virtue  of  its  right  of  eminent  domain, 
reserves  the  property  of  a citizen  and  appropriates  it  to 
the  use  of  the  public;  or  in  prosecuting  some  great  public 
work,  such  as  a canal  or  railroad,  even  in  its  sovereign 
capacity,  or  through  the  power  delegated  to  an  incorporated 
company,  finds  it  necessary  not  merely  to  take  the  soil  and 
propeily  of  the  citizen,  but  to  destroy  his  mill  seat,  divert 
his  waiter-course, *or  commit  other  irreparable  damage  to  pri- 
vate rights  in  order  to  effect  the  great  object  in  view,  in  such 
case  not  only  must  private  rights  yield  to  the  interest  and 
wishes  of  the  State,  but  it  is  a positive  evil  suffered  by  an 
individual  for  the  supposed  gain  of  the  whole  community,  at 
the  will  of  that  community,  and  upon  every  principle  of  jus- 
tice the  public  should  make  compensation.”  Id.  This  is  a 
general  principle.  Mitchell  v.  Harmony,  13  How.,  115,  134  ; 
S.  C.,  1 Blatch.,  549;  American  Print  Works  v.  Lawrence, 
3 Zab.,  590;  Yattel,  403;  Grotius,  b.  2,  eh.  14,  sec.  7 ; Id., 
b.  3,  cli.  20,  sec.  7 ; Russell  v.  Mayor,  &c.,  2 Denio,  461 ; 12 
Mouses’  Cases,  12,  Coke,  63;  Grant  v.  The  United  States,  1 
N.  & H.  Ct.  of  Claims,  45-50. 

But  the  danger  must  be  immediate  and  impending,  or  the 
necessity  urgent  for  the  public  service,  such  as  will  not  ad- 
mit of  de^ay.  Id. 

Article  YI. 

In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  la^v,  and 
to  be  informed  of  the  nature  and  cause  of  the  accu- 
sation; to  be  confronted  with  the  witnesses  against 
him;  to  have  Compulsory  process  for  obtaining 
Witnesses  in  his  favour,  and  to  have  the  Assistance 
of  Counsel  for  his  defense. 

490.  “In  criminal  prosecutions,”  &C.  The  Consti- 
tution was  ordained  and  established  by  the  people  of  the 
United  States  for  themselves,  for  their  own  government, 


Art.  V, VI.] 


ACCUSATION,  490-491. 


475 


and  not  for  the  government  of  the  individual  States,  (Bar- 
ron v.  Baltimore,  7 Pet.,  243.)  Twitchell  v.  The  Common- 
wealth, 7 Wall.,  326. 

The  powers  the  people  conferred  on  this  government  were 
to  be  exercised  by  itself;  and  the  limitations  on  power,  if 
expressed  in  general  terms,  are  not  naturally  and,  we  think, 
necessarily  applicable  to  the  government  created  by  the  in- 
strument. They  are  limitations  of  power  granted  in  the 
instrument  itself,  not  of  distinct  governments  framed  by 
different  States  and  for  different  purposes.  And  hence  the 
amendments  do  not  apply  to  the  States.  (Barron  v.  Balti- 
more, 7 Pet.,  243  ; Fox  v.  Ohio,  5 How.,  434;  Smith  v.  Mary- 
land, 18  How.,  76;  Withers  v.  Buckley,  20  How.,  90.) 
Twitchell  v.  The  United  States,  7 Wall.,  3^4,  325. 

* The  chief  justice  said  that  the  case  was  settled  in  the  court, 
but  intimated  that  were  the  question  new  the  construction 
might  be  different. 

This  and  the  previous  amendment  are  against  the  power 
of  the  President  to  exercise  any  power  over  “life,  libert}^  or 
property”  of  a private  citizen,  except  to  see  that  the  laws  be 
faithfully  executed  through  the  judicial  department.  Ex 
parte  Merriman,  Taney’s  C.  C.  R.,  259,  260. 

491.  “And  to  be  informed  of  the  nature  and 
CAUSE  of  THE  ACCUSATION.”  This  applies  to  cases  in  the 
courts  of  the  United  States,  and  not  to  State  courts.  Twitchell 
v.  The  Commonwealth,  7 Wall.,  326.  In  the  United  States  v. 
Mills,  7 Pet.,  142,  this  was  construed  to  mean  that  the  indict- 
ment must  set  forth  the  offese  “ with  clearness  and  all  neces- 
sary certainty,  to  apprise  the  accused  of  the  crime  with  which 
he  stands  charged;”  and  in  United  States  v.  Cook,  17  Wall., 
174,  that  “every  ingredient  of  which  the  offense  is  composed 
must  be  accurately  and  clearly  alleged.”  It  is  an  element- 
ary principle  of  criminal  pleading  that  where  the  definition 
of  an  offense,  whether  it  be  at  common  law  or  by  statute, 
“includes  generic  terms,  it  is  not  sufficient  that  the  indict- 
ment shall  charge  the  offense  in  the  same  generic  terms  as  in 
the  definition,  but  it  must  state  the  species — it  must  descend 
to  particulars.”  (1  Arch.  Cr.  Pr.  and  Plead.,  291.)  The  ob- 
ject of  the  indictment  is,  first,  to  furnish  the  accused  with 
such  a description  of  the  charge  against  him  as  will  enable 
him  to  make  his  defense,  and  avail  himself  of  his  conviction 
or  acquital  for  protection  against  a further  prosecution  for 
the  same  cause  ; and,'  second,  to  inform  the  court  of  the  facts 
alleged,  so  that  it  may  decide  whether  they  are  sufficient  in 
law  to  support  a conviction,  if  one  should  be  had.  For  this, 
facts  are  to  be  stated,  not  conclusions  of  law  alone.  A crime 
is  made  up  of  acts  and  intent,  and  these  must  be  set  forth  in 
the  indictment,  with  reasonable  particularity  of  time,  place, 
and  circumstances.  (State  V.  Parker,  43  1ST.  H.,  83 ; State  v. 
Reach,  40  Vt.,  118;  Alderman  v.  The  People,  4 Mich.,  414; 
State  v.  Roberts,  34  Me.,  32.)  United  States  v.  Cruikshank, 
(October  Term,  1875,)  2 Otto,  000 


stituted? 


Who  are  to 
exercise 
the  powers 
of  the  Gov- 
ernment? 

260. 


Power  de- 
nied to  the 
President. 


To  what 
confined? 

253. 

Construc- 

tion. 


Indict- 

ment. 


Generic 

terms. 


476 


EXCESSIVE  BAIL,  492,  493.  [Amendments, 


Right  of 
trial  by- 
jury,  and 
on  review 
of  facts. 


The  his- 
tory. 

263. 


Facts  re- 
viewed. 
264. 


Limita- 

tions. 


Excessive 

bail. 

266,  267. 


Article  YII. 

In  Suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of 
trial  by  jury  shall  be  preserved,  and  no  fact  tried 
by  a jury  shall  be  otherwise  re-examined  in  any 
Court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law. 

492.  “In  suits  at  common  law,  where  the  value 

IN  CONTROVERSY  SHALL  EXCEED  TWENTY  DOLLARS,  THE 
RIGHT  OF  TRIAEi  BY  JURY  SHALL  BE  PRESERVED.”  This 
should  be  read  as  a substantial  and  independent  clause. 
And  it  is  a prohibition  to  the  courts  of  the  United  States  to 
re-examine  any  facts  tried  by  a jury  in  any  other  manner. 
(Parsons  v.  Bedford,  3 Pet.,  447,  448.)  The  history  of  the 
amendment  confirms  this  view.  (Debates  in  Congress,  by 
Gales  & Seaton,  vol.  1,  pp.  452,  458,  784.)  The  Justices  v. 
Murray,  9 Wall.,  277. 

493.  “And  no  fact  tried  by  a jury  shall  be 

OTHERWISE  RE-EXAMINED  IN  ANY  COURT  OF  THE  UNITED 

States,  than  according  to  the  common  law.”  The 
only  modes  known  to  the  common  law  to  re-examine  such  facts 
was  the  granting  a new  trial  by  the  court  where  the  issue  was 
tried,  or  the  award  of  a venire  facias  de  novo  by  the  appellate 
court,  for  some  error  of  law  that  had  intervened  in  the  pro- 
ceedings. (Parsons  v.  Bedford,  3 Pet.,  448.)  The  Justices  v . 
Murray,  9 Wall.,  277,  278. 

These  ten  amendments  are  limitations  upon  the  powers  of 
the  Federal  Government,  and  not  upon  the  States.  (Barron 
v.  The  Mayor  and  City  of  Baltimore,  7 Pet.,  243 ; Lessee  of 
Livingstone  v.  Moore,  7 Pet.,  550;  Twitchell  v.  Common- 
wealth, 7 Wall.,  321.)  The  Justices  v.  Murray,  9 Wall.,  278. 
But  this  amendment  had  reference  to  the  revision  of  the 
judgments  of  the  State  courts  as  well  as  the  inferior  Federal 
courts.  (Waterbee  v.  Johnson,  14  Mass.,  412  ; Pattie  v.  Mur- 
ray, 46  Barb.,  331.  So  much  of  the  act  of  1863  as  provides 
for  the  removal  of  a judgment  in  a State  court  to  this  court 
for  retrial  on  the  facts  and  law  is  void.  The  Justices  v,  Mur- 
ray, 9 Wall.,  280-282. 

Article  YIII. 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments 
inflicted. 


Art.  VII-X.]  SEPARATE  POWERS,  494,  495. 


477 


Article  IX. 

The  enumeration  in  the  Constitution,  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. 

Article  X. 

The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the 
people. 

494.  u The  powers  not  delegated.”  That  the 
States  retained  the  power  to  incorporate  State  banks  has 
never  been  denied.  The  only  question  has  been  as  to  the 
power  of  Congress  to  incorporate  a national  bank ; and  that 
has  been  concluded  by  the  case  of  McCulloch  v.  Maryland,  4 
Wheat.,  316.  (Osborn  v.  The  United  States  Bank,  9 Wheat., 
316;  United  States  Bank  v.  Planter’s  Bank  of  Georgia,  9 
Wheat.,  804,  904.)  Justice  Xelson,  in  Yeazie  Bank  v.  Fen- 
no,  8 Wall.,  550,  551. 

The?  entire  sovereignty  of  the  nation  is  vested  in  the  State 
and  Federal  Governments,  except  that  part  of  it  which  is 
retained  by  the  people,  which  is  solely  the  right  of  electing 
their  functionaries.  (Wm.  H.  Crawford,  4 Elliott’s  Debates, 
367.)  Metropolitan  Bank  v.  Yandyck,  27  X.  Y.  B.,  418. 

495.  The  separate  powers  of  the  Governments. 
The  powers  of  the  General  Government  and  of  the  States, 
although  both  exist  and  are  exercised  within  the  same 
territorial  limits,  are  j^et  separate  and  distinct  sovereignties, 
acting  separately  and  independently  of  each  other,  within 
their  respective  spheres.  And  the  sphere  of  action  appropri- 
ated to  the  United  States  is  as  far  beyond  the  judicial  process 
issued  hy  a State  judge  or  court  as  if  the  line  of  division  were 
traced  by  landmarks  and  monuments  visible  to  the  eye.  The 
only  qualification  to  this  rule  of  distinct  action  is  in  the  su- 
premacy of  the  Constitution,  laws,  and  treaties  of  the  United 
States,  from  which  it  results  that  if  any  conflict  arise  between 
the  enactments  of  the  two  sovereignties,  or  in  the  enforcement 
of  their  asserted  authorities,  those  of  the  national  Govern- 
ment must  have  supremacy  until  the  question  of  validity  is 
tried.  The  Constitution  was  not  framed  merely  to  guard 
the  States  against  danger  from  abroad,  but  chiefly  to  secure 
union  and  harmony  at  home ; and  to  accomplish  this,  many 
of  the  rights  of  sovereignty  which  the  States  then  possessed 
were  ceded  to  the  General  Government ; and  in  the  sphere 
of  action  assigned  to  it,  it  was  intended  that  it  should  be 


What  of  the 
enumera- 
tion of 
rights? 

268. 


What  of  the 
reserved 
powers  ? 


The  right 
to  incorpo- 
rate banks. 
296. 


Where  is 
the  sov- 
ereignty 
vested  ? 


How  are 
the  powers 
of  the  Gov- 
ernments 
separated  ? 


478 


SLAVERY  INHIBITED,  496.  [Amd’s.Art. X-XIII, 


Govern- 

ment. 


How  is  the 
judicial 
power  con- 
strue ? 
Page  269, 
notes  270- 
272. 


Repeat  the 
inhibition 
upon 
slavery. 

274. 


Power  to 
enforce. 


Explain 
the  mean- 
ing of  the 
inhibition. 


The  extent 
of  the  pow- 
er. 


strong*  enough  to  execute  its  own  laws,  by  its  own  tribunals, 
without  interruption  from  the  States  or  their  authorities. 
(Ableman  v.  Booth,  21  How.,  506.)  Tarble’s  Case,  13  Wall., 
403-407. 

ArticAe  XI. 

The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United 
States,  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State. 

Article  XII. 

This  is  given  on  page  64,  164,  and  401,  and  need  not  be 
here  repeated. 

Article  XU  I. 

1 Neither  slavery  nor  involuntary  servitude,  except 
as  a punishment  for  crime,  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  withm  the 
United  States,  or  any  place  subject  to  their  juris- 
diction. 

2 Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

496.  “ Neither  slavery  nor  involuntary  servi- 
tude.” This  is  not  merely  a prohibition  against  the  passage 
or  enforcement  of  any  law  establishing  this  relation,  but  it  is 
also  a positive  declaration  that  slavery  shall  not  exist.  In 
the  enforcement  of  the  article,  therefore,  Congress  has  to 
deal  with  the  subject-matter.  This  amendment  had  the 
affirmative  operation  to  complete  the  enfranchisement  of 
four  million  slaves;  and  Congress  has  the  power  to  legislate 
for  the  eradication  of  slavery,  and  to  give  full  effect  to  this 
bestowment  of  liberty.  This  is  essayed  to  be  done  by  the 
civil  rights  law  of  1S66.  (14  Stat.,  27 ; Paschal’s  Dig.,  arts. 

5382-5388;  and  see  also  act  of  31  May,  1870,  16  Stat.,  144; 
Paschal’s  Dig.,  arts.  5889-5891 ; and  the  act  to  enforce  the 
rights  of  the  citizen,  31  May,  1870,  16  Stat.,  140;  Paschal’s 
Dig.,  arts.  6681-6724.)  The  United  States  v.  Cruikshank,  1 
Woods,  318. 

Congress  has  the  power  to  make  it  a penal  offense  to 
conspire  to  deprive  a person  of  the  enjoyment  of  the  rights 
and  privileges  conferred  by  this  article.  But  this  does  not 


Sec.  1,2.] 


SERVITUDE,  496,  497. 


479 


authorize  Congress  to  pass  laws  for  the  punishment  of  ordi- 
nary crimes,  such  as  murders,  robberies,  assaults,  thefts, 
cognizable  in  State  courts,  unless  the  State  should  deny  the 
colored  class  the  right  to  the  equal  protection  of  the  laws. 
The  United  States  v.  Cruikshank,  1 Woods,  319 ; United  States 
v.  Reese,  (October  Term,  1875,)  2 Otto,  000. 

49 7.  u Non  INVOLUNTARY  servitude.”  That  it  was 
a personal  servitude  which  was  meant  is  proved  by  the  use 
of  the  word  “involuntary,”  which  can  only  apply  to  human 
beings.  The  exception  of  servitude  as  a punishment  for 
crime  gives  an  idea  of  the  class  of  servitude  which  is  meant. 
The  word  servitude  is  of  larger  meaning  than  slavery,  as 
the  latter  is  popularly  understood  in  this  country,  and  the 
obvious  purpose  was  to  forbid  all  shades  and  conditions  of 
African  slavery.  It  was  very  well  understood  that  in  the 
form  of  apprenticeship  for  long  terms,  as  it  had  been  prac- 
ticed in  the  West  India  Islands  on  the  abolition  of  slavery  by 
the  English  Government,  or  by  reducing  them  to  the  condi- 
tion of  serfs  attached  to  the  plantation,  the  article  might 
have  been  evaded,  if  only  the  word  slavery  had  be^n  used. 
The  case  of  the  apprentice  slave,  held  under  a law  of  Mary- 
land, liberated  by  Chief  Justice  Chase  on  a writ  of  habeas 
corpus  under  this  article,  illustrates  this  course  of  observ- 
ation. flatter  of  Turner,  (Abbott,  U.  S.  R.,  84.)  The 
Slaughter-House  Cases,  16  Wall.,  69. 

The  same  view  was  taken  by  Mr.  Justice  Hunt  in  The 
United  States  v.  Susan  B.  Anthony  in  New  York. 

We  mean  the  freedom  of  the  slave  race,  the  security  and 
firm  establishment  of  that  freedom,  and  the  protection  of 
the  newty-made  freeman  and  citizen  from  the  oppression  of 
those  who  had  formerly  exercised  unlimited  dominion  over 
him.  It  is  true  that  only  the  15th  amendment  in  terms 
mentions  the  negro  race  by  speaking  of  his  color  and  his 
slavery;  but  it  is  just  as  true  that  each  of  the  other  articles 
was  addressed  to  the  grievances  of  that  race  and  designed  to 
remedy  them  as  the  15th. 

We  do  not  say  that  no  one  else  but  the  negro  can  share  in 
this  protection.  Both  the  language  and  spirit  of  these  arti- 
cles are  to  have  their  fair  and  just  weight  in  any  question 
of  construction.  Undoubtedly,  while  negro  slavery  alone 
was  in  the  mind  of  the  Congress  which  proposed  the  13th 
article,  it  forbids  any  other  kind  of  slavery,  now  or  here- 
after. If  Mexican  peonage,  or  the  Chinese  cooley  labor 
system,  shall  develop  slavery  of  the  Mexican  or  Chinese  race 
within  our  territory,  this  amendment  may  safely  be  trusted 
to  make  it  void.  And  so,  if  other  rights  are  assailed  by  the 
States,  which  properly  and  necessarily  fall  within  the  pro- 
tection of  these  articles,  that  protection  will  appty,  though 
the  party  interested  may  not  be  of  African  descent.  But 
what  we  do  say,  and  what  we  wish  to  have  understood,  is, 


Crimes 
against  the 
State. 


Define  and 
and  explain 
servitude. 


Was  the 
amend- 
ment in- 
tended to 
relate  ex- 
clusively to 
slaves  ? 


May  others 
than  the 
negroes 
share  in 
the  protec- 
tion ? 


480 


CONTRACTS,  497-499.  [Amd’s,  Art.  XIII, 


Look  to  the 
purpose. 


The  Hamp- 
ton Roads 
conference 
in  regard 
to  this 
amend- 
ment. 


Lincoln. 


Seward. 


What  effect 
has  this 
amend- 
ment upon 
contracts? 


that  in  any  fair  and  just  construction  of  any  section  or 
phrase  of  these  amendments,  it  is  necessary  to  look  always 
to  the  purpose  which  we  have  said  was  the  pervading  spirit 
of  them  all,  the  evil  which  they  were  designed  to  remedy, 
and  the  process  of  continual  addition  to  the  Constitution, 
until  that  purpose  was  supposed  to  be  accomplished  as  far  as 
constitutional  laws  can  accomplish  it.  The  Slaughter-House 
Cases,  16  Wall.,  71,  72. 

498.  44  Shall  ever  exist.”  [I  asked  Mr.  Lincoln  what 
would  be  the  status  of  that  portion  of  the  slave  population  in 
the  Confederate  States  which  had  not  then  (31  Jan.,  1865) 
become  free  under  his  proclamation ; or  in  other  words,  what 
effect  that  proclamation  would  have  upon  the  entire  black 
population?  Would  it  be  held  to  emancipate  the  whole,  or 
only  those  who  had  at  the  time  the  war  ended  become  actu- 
ally free  under  it?  Mr.  Lincoln  said  that  was  a judicial  ques- 
tion. How  the  courts  would  decide  it  he  did  not  know,  and 
-could  give  no  answer.  His  own  opinion  was  that,  as  the 
proclamation  was  a war  measure , and  would  have  effect  only 
from  itp  being  an  exercise  of  the  war  power,  as  soon  as  the 
war  ceased  it  would  be  inoperative  in  the  future.  It  would 
be  held  to  apply  only  to  such  slaves  as  had  come  under  its 
operation  while  it  was  in  active  exercise.  Mr.  Seward  con- 
firmed this  view,  and  produced  the  13th  constitutionfl  amend- 
ment, then  just  published.  He  said  this  was  done  as  a war 
measure . If  the  war  were  then  to  case  it  would  probably  not 
be  adopted  b}r  a number  of  States  sufficient  to  make  it  part 
of  the  Constitution ; but  presented  the  case  in  such  a light 
as  clearly  showed  his  object  to  be  to  impress  upon  the  minds 
of  the  commissioners  that  if  the  war  should  not  cease  this,  as 
a war  measure,  would  be  adopted  by  a sufficient  number  of 
States  to  become  a part  of  the  Constitution;  and  without 
saying  it  in  direct  words,  left  the  inference  very  clearly  to 
be  perceived  by  the  commissioners  that  his  opinion  was,  if 
the  Confederate  States  would  abandon  the  war  they  could  of 
themselves  defeat  this  amendment  by  Voting  it  down  as 
members  of  the  Union.  The  whole  number  of  States,  it  was 
said,  being  thirty-six,  any  ten  of  them  could  defeat  this  pro- 
posed amendment.  The  history  of  that  conference,  as  far  as 
it  has  been  published  officially,  is  printed  in  the  same  volume. 
The  War  among  the  States,  vol.  H,  610-612.  (Appendix  R, 
p.  791,  et  seq.)  The  Emancipation  Cases,  31  Tex.,  729,  730.] 

499.  The  effect  upon  contracts.  He  denied  that 
the  XHIth  amendment  was  necessary  to  free  slaves  in  the  in- 
surgent States,  and  insisted  that  it  was  finall}r  destroyed  in 
Texas  by  the  proclamation  of  General  Granger  on  19  June, 
1865,  and  hence  that  down  to  that  time  the  slaves  were  chat- 
tels and  a valuable  consideration  for  contracts.  The  Emanci- 
pation Cases,  31  Tex.,  532-534.  And  so  it  was  since  held  by 


ci.  1,  2.] 


CONTRACTS,  499. 


481 


all  the  court.  Angler  v.  Black,  32  Tex.,  168;  Ward  v.  Bled- 
soe, 32  Tex.,  251 ; McDaniel  v.  White,  32  Tex.,  489. 

The  pecuniary  loss  by  emancipation  fell  upon  the  proprie- 
tor of  the  tiling  at  the  time  of  the  vis  major . Osborn  v.  Nich- 
olson, 13  Wall.,  659 ; The  Emancipation  Cases,  31  Tex.,  528  ; 
Paschal’s  Digest  of  Decisions,  §§10094-10112. 

Congress  authorized  the  State  to  frame  anew  constitution, 
and  it  elected  to  proceed  within  the  scope  of  the  authority 
conferred.  The  result  was  submitted  to  Congress  as  a vol- 
untary and  valid  offering,  and  was  so  received  arid  so  recog- 
nized in  the  subsequent  action  of  that  body.  The  State  is 
estopped  to  assail  it  upon  the  assumption  that  the  people 
were  not  the  actors.  Upon  the  same  grounds  it  might  deny 
the  validity  of  its  ratification  of  the  constitutional  amend- 
ments. The  action  of  Congress  upon  the  subject  cannot  be 
inquired  into.  The  judicial  is  bound  to  follow  the  action  of 
the  political  department  of  the  Government,  and  is  concluded 
by  it.  (Luther  v.  Borden,  7 How.,  43,  47,  57 ; Rose  v.  Himely, 
4 Cr.,  272;  Gelston  v.  Hoyt,  3 Wheat.,  324;  Williams  v.  The 
Suffolk  Ins.  Co.,  13  Pet.,  420.)  Neither  before  nor  after  se- 
cession had  Georgia  the  right  to  adopt  this  provision,  which 
annihilates  all  pre-existing  contracts  given  for  slaves.  As  to 
such  contracts  the  constitution  of  Georgia  is  itself  a nullity. 
White  v.  Hart,  13  Wall.,  652,  654.  The  note  was  given  for 
a slave,  with  warranty  of  title  and  that  he  was  a slave  for 
life.  The  plea  was  that  the  slave  became  free  in  1862.  We 
lay  out  of  view  in  limine  the  constitution  of  Arkansas  of  1868, 
which  annuls  all  contracts  for  the  purchase  or  sale  of  slaves, 
and  declares  that  no  court  of  the  State  should  take  cognizance 
of  any  suit  founded  on  such  a contract,  and  that  nothing 
should  ever  be  collected  upon  any  judgment  or  decree  which 
had  been,  or  should  thereafter  be,  u rendered  upon  any  such 
contract  or  obligation.”  As  to  all  prior  transactions  the  con- 
stitution is,  in  each  of  the  particulars  specified,  clearly  in 
conflict  with  that  clause  of  the  Constitution  of  the  United 
States  which  ordains  that  “no  State  shall”  44 pass  any  law 
impairing  the  obligation  of  contracts.”  (Von  Hoffman  v. 
The  City  of  Quincy,  4 Wall.,  535;  White  v.  Hart,  13  Wall., 
646.)  Osborn  v.  Nicholson,  13  Wall.,  656. 

This  contract,  when  made,  could  have  been  enforced  in  the 
courts  of  every  State  of  the  Union,  and  in  the  courts  of  every 
civilized  country  elsewhere.  In  the  celebrated  case  of  Somer- 
set, Lord  Mansfield  said  : “A  contract  for  the  sale  of  a slave 
is  good  here . The  sale  is  a matter  to  which  the  law  property 
and  readily  attaches,  and  wiM  maintain  the  price  according  to 
the  agreement.  But  here  the  person  of  the  slave  himself  is 
immediately  the  object  of  inquiry,  which  makes  a very  ma- 
terial difference.”  (20  Howell’s  State  Trials,  79;  Madrazo 
v.  Willes,  3 Barn.  & Aid.,  353;  Santos  v.  Illidge,  98  Eng. 
Com.  Law,  861;  The  Antelope,  10  Wheat.,  66;  Emerson  v. 
Howland,  1 Mason,  50 ; Commonwealth  v . Aves,  18  Pick., 


Time 

when. 


The  recon- 
struction of 
Georgia. 


Estoppel. 


The  invio- 
lability of 
contracts. 


The  con- 
tract being 
valid  when 
made  re- 
mained 
valid. 


482 


CONTRACTS,  499,  500. 


Amd's,  Art.  XIV, 


Cases. 


The  war- 
ranty. 


Vested 

rights. 


Who  are 
citizens  ? 


Inhibitions 
upon  the 
States. 


Give  the 
history  of 
the  subject. 


215 ; Groves  v.  Slaughter,  15  Pet.,  449 ; Andrews  v.  Hensler, 

6 Wall.,  254.)  Osborn  v.  Nicholson,  13  Wall.,  656,  657. 

This  warranty  embraces  four  points  : that  the  slave  was 
sound  in  body;  that  he  was  sound  in  mind;  that  he  was  a 
slave  for  life ; and  that  the  seller’s  title  was  perfect.  He  was 
not  a perpetual  assurer  of  soundness  of  mind,  health  of  body, 
or  continuity  of  title.  A change  of  ownership  and  possession 
of  real  estate  by  the  process  of  eminent  domain  is  not  a vio- 
lation of  the  covenant  for  quiet  enjoyment.  (Frost  v.  Earn- 
est, 4 Whart.,  76 ; Ellis  v.  Welch,  6 Mass.,  246.)  Nor  is  it 
such  an  eviction  as  will  support  an  action  for  a breach  of  the 
covenant  of  general  warranty.  In  Dobbins  v.  Brown,  12 
Penn.,  80,  it  was  said  by  the  court:  “It  will  scarcely  be 
thought  that  a covenant  of  warranty  extends  to  the  State  in 
the  exercise  of  its  eminent  domain.”  Osborn  v.  Nicholson. 
13  Wall.,  657. 

Before  the  Xlllth  amendment  was  adopted  the  rights  of  the 
vendors  of  slaves  at  anterior  dates  had  become  completely 
vested ; and  it  would  be  contrary  to  reason  and  to  one  of  the 
most  vital  ends  of  government  to  say  that  the  contracts  were 
destroyed  by  emancipation.  (Priggv.  Pennsylvania,  10  Pet., 
11 ; Calder  v.  Bull,  3 Dallas,  388.)  Such  a deprivation  would 
be  without  u due  process  of  law.”  This  is  forbidden  by  the 
fundamental  compact,  and  is  beyond  the  sphere  of  the  legis- 
lative authority  both  of  States  and  the  nation.  (Taylor  v. 
Porter,  4 Hill,  146  ; Wynehamer  v.  The  People,  3 Kern,  394 ; 
Wilkinson  v.  Leland,  2 Pet..  658.)  Osborn  v.  Nicholson,  13 
Wall.,  662. 

Article  XiV. 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws.  • 

500.  “All  persons  born  or  naturalized  in  the 
United  States.”  This  opens  with  a definition  of  citizen- 
ship— not  only  citizenship  of  the  United  States,  butcitizen- 
ship  of  the  States.  No  such  definition  was  previously  found 
in  t he  Constitution,  nor  had  any  attempt  been  made  to  define 


Sec.  1.] 


CITIZENS,  500. 


483 


it  by  act  of  Congress.  [The  civil-rights  law  of  1866  ought  to 
have  been  excepted.]  It  had  been  the  occasion  of  much  dis- 
cussion in  the  courts,  by  the  executive  departments,  and  in 
the  public  journals.  It  had  been  said  by  circuit  judges  that 
no  man  was  a citizen  of  the  United  States  except  as  he  was 
a citizen  of  one  of  the  States  composing  the  Union.  Those, 
therefore,  who  had  been  born  and  resided  always  in  the  Dis- 
trict of  Columbia  or  in  the  Territories,  though  within  the 
United  States,  were  not  citizens.  Whether  this  proposition 
was  sound  or  not  had  never  been  judicially  decided.  But  it 
had  been  held  by  this  court,  in  the  celebrated  Dred  Scott 
case,  (18  IIow.,)  that  a man  of  African  descent,  whether  a 
slave  or  not,  was  not  and  could  not  be  a citizen  of  a State  or 
of  the  United  States.  This  decision  had  never  been  over- 
ruled ; and  if  it  was  to  be  accepted  as  a constitutional  limita- 
tion of  the  right  of  citizenship,  then  all  the  negro  race  who 
had  recently  been  made  freemen  were  still,  not  only  not  citi- 
zens, but  were  even  incapable  of  becoming  so  by  anything 
short  of  an  amendment  to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a clear 
and  comprehensive  definition  of  citizenship  of  the  United 
States,  and  also  of  a State,  the  first  clause  of  the  first  section 
was  framed : 

“All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.” 

This  puts  at  rest  both  the  questions  which  we  stated  to 
have  been  the  subject  of  differences  of  opinion.  It  declares 
that  persons  may  be  citizens  of  the  United  States  without 
regard  to  the  citizenship  of  a particular  State,  and  it  over- 
turns the  Dred  Scott  decision  by  making  all  persons  born 
within  the  United  States,  and  subject  to  its  jurisdiction,  citi- 
zens of  the  United  States. 

The  distinction  between  citizenship  of  the  United  States 
and  of  a State  is  clearly  recognized  and  continued.  ISTot 
only  may  a man  be  a citizen  of  the  United  States  without 
being  a citizen  of  a State,  but  an  important  element  is  neces- 
sary to  convert  the  former  into  the  latter.  He  must  reside 
within  the  State  to  make  him  a citizen  of  it ; but  it  is  only 
necessary  that  he  should  be  born  or  naturalized  in  the  United 
States  to  be  a citizen  of  the  Union.  It  is  quite  clear,  then, 
that  there  is  a citizenship  of  the  United  States  and  a citizen- 
ship of  a State  which  are  distinct  from  each  other,  and  which 
depend  upon  different  characteristics  or  circumstances  in  the 
individual.  The  Slaughter-House  Cases, 16  Wall.,  73.  Affirmed. 
The  United  States  v.  Cruikshank,  (October  Term,  1875,)  2 
Otto,  000.  [The  conclusion  is  not  so  clear  as  to  those  resid- 
ing in  the  District  of  Columbia  or  the  Territories.  It  can 
only  be  supported  upon  the  admissible  theory  that  these 
political  divisions  are,  for  some  purposes,  States.] 


Definition 
of  citizen- 
ship. 


Dred  Scott. 


What  does 
this  put  to 
rest? 


What  is  the 
distinction 
between 
citizenship 
of  the 
United 
States  and 
of  a State  ? 


484 


citizens,  501,  502. 


Amd’s,  Art.  XIV, 


What  is  the 
deduction 
from  this  ? 


Remark. 


Does  this 
clause  give 
any  addi- 
tional 
strength  ? 


Page  10. 


The  lead- 
ing case. 


501,  4 4 No  State  shall  make  or  enforce  any  laws 

WHICH  SHALL  ABRIDGE  THE  PRIVILEGES  OR  IMMUNITIES 
OF  CITIZENS  OF  the  United  States.”  It  is  a little  re- 
markable, if  this  clause  was  intended  as  a protection  to  the 
citizen  of  a State  against  the  legislative  power  of  his  own 
State,  that  the  words  “citizens  of  the  State”  should  be  left 
out,  when  they  are  so  carefully  used,  and  used  in  contradis- 
tinction to  citizen  of  the  United  States,  in  the  very  sentence 
which  precedes  it.  It  is  too  clear  for  argument  that  the 
change  in  phraseology  was  adopted  intentionally.  The 
Slaughter-House  Cases,  16  Wall.,  73,  74.  [This  takes  what 
is  said  in  the  preceding  sentence  as  a demonstrable  truth. 
There  never  ought  to  have  been  any  doubt  that  the  immi- 
grants to  the  District  and  Territories,  and  naturalized  there, 
were  as  much  citizens  of  the  United  States  as  those  residing 
in  the  States  of  the  Union.  But  the  languageof  the  amend- 
ment does  not  dispel  the  mist  which  the  names  of  political 
corporations  have  caused.] . 

502.  “Privileges  or  immunities.”  Of  the  privileges 
and  immunities  of  the  citizen  of  the  United  States,  and  of  the 
privileges  and  immunities  of  the  citizen  of  the  State,  and 
what  they  respectively  are,  we  will  presently  consider;  but 
we  wish  to  state  here  that  it  is  only  the  former  which  are 
placed  by  this  clause  under  the  protection  of  the  Federal 
Constitution,  and  that  the  latter,  whatever  they  may  be,  are 
not  intended  to  have  any  additional  protection  by  this  par- 
agraph of  the  amendment.  If,  then,  there  is  a difference 
between  the  privileges  and  immunities  belonging  to  a citizen 
of  the  United  States  as  such,  and  those  belonging  to  the  citizen 
of  a State  as  such,  the  latter  must  rest  for  their  security  and 
protection  where  they  have  heretofore  rested,  so  far  as  this 
paragraph  is  concerned,  for  they  receive  no  additional  aid 
from  it. 

The  first  occurrence  of  the  w’ords  privileges  and  immuni- 
ties in  our  constitutional  history,  is  to  be  found  in  the  fourth 
of  the  articles  of  the  old  confederation,  (p.  10,  sec.  IV,  quoted ; 
also  art.  IV,  sec.  10,  of  the  Constitution.) 

The  purpose  of  both  these  provisions  is  the  same,  and  the 
privileges  and  immunities  intended  are  the  same  in  each.  In 
the  article  of  the  confederation  we  have  some  of  these  specifi- 
cally mentioned,  and  enough  perhaps  to  give  some  general 
idea  of  the  class  of  civil  rights  meant  b37  the  phrase. 

The  leading  case  on  the  subject  is  that  of  Corfield  v.  Cor- 
yell, 4 Wash.  C.  C.  11.,  471 ; Ward  v.  Maryland,  12  Wall., 
430.  They  are,  in  the  language  of  Judge  Washington,  those 
rights  which  are  fundamental.  Throughout  his  opinion 
they  are  spoken  of  as  rights  belonging  to  the  individual  as  a 
citizen  of  a State.  They  are  so  spoken  of  in  the  constitu- 
tional provision  which  he  was  construing.  And  they  have 
always  been  held  to  be  the  class  of  rights  which  the  State  gov- 


Sec.  1.]  CITIZENS,  502. 

ernments  were  directed  to  establish  and  secure.  Slaughter- 
House  Cases,  16  Wall.,  75,  76. 

Women  are  “persons”  within  this  provision,  and  so  they 
are  “citizens  of  the  United  States,”  and  it  did  not 
need  this  amendment  to  give  them  that  position.  The  de- 
finition is  new,  but  it  is  embraced  in  the  very  idea  of  a polit- 
ical Community  or  nation,  which  is  an  association  of  persons 
for  the  promotion  of  their  general  welfare.  Each  person  so 
associated  becomes  a member  of  the  nation,  to  which  he 
owres  allegiance  and  from  which  he  is  entitled  to  protection, 
these  being  reciprocal  obligations.  The  designations  of  such 
persons  are  “subjects,”  “inhabitants,”  and  “citizens,”  the 
choice  depending  upon  the  form  of  government.  Citizen  is 
better  suited  to  the  description  of  one  living  under  a repub- 
lican government,  and  has  been  so  used  by  the  States  from 
their  separation  from  Great  Britain,  and  it  was  afterwards 
adopted  in  the  articles  of  confederation  and  the  Constitution 
of  the  United  States.  Minoru.  Happersett,  21  Wall.,  165, 166. 

Every  citizen  of  the  United  States  is  also  a citizen  of  a 
State  or  Territory.  He  owes  allegiance  to  two  sovereigns, 
and  may  be  punished  for  an  infraction  of  the  laws  of  either. 
The  same  act  may  be  an  infraction  of  the  laws  of  both. 
(Moore  v.  Illinois,  14  How.,  20.)  The  United  States  u. 
Cruikshank,  1 Woods,  324. 

. This  Constitution  was  established  by  the  people  of  the 
United  States,  who  w^ere  those  of  the  several  States  which 
had  separated  from  Great  Britain,  so  that  they  ipso  facto 
became  citizens  of  the  United  States.  Additions  might 
always  be  made  by  birth  and  naturalization,  but  as  to  who 
are  naturalty  born  we  must  look  to  other  definitions.  All 
children  born  of  citizen  parents  within  the  jurisdiction  of 
the  United  States  are  themselves  citizens.  Alien  women 
and  minors  could  always  be  made  citizens.  Minor  v.  Hap- 
persett, 21  Wall.,  167-169. 

Citizens,  within  the  meaning  of  this  article,  must  be  nat- 
ural, and  not  artificial  persons,  therefore  a corporate  body  is 
not  a citizen  of  the  United  States  within  its  provisions.  The 
Insurance  Co.  v.  IsTew  Orleans,  1 Woods,  87,  88. 

The  accused,  though  a rebel,  has  the  right  to  appear  and 
contest  the  proceedings.  (McVeigh  u.  The  United  States,  11 
Wall.,  159.)  The  Confiscation  Cases,  1 Woods,  230. 

This  adds  nothing  to  the  rights  of  one  citizen  as  against 
another.  It  simply  furnishes  an  additional  guaranty  against 
any  encroachment  by  the  States  upon  the  fundamental  rights 
which  belong  to  every  citizen  as  a member  of  society.  As 
was  said  by  Mr.  Justice  Johnson,  in  Bank  of  Columbia  v. 
Oakly,  4 Wheat.,  244,  it  secures  “the  individual  from  the 
arbitrary  exercise  of  the  powers  of  government,  unrestrained 
by  the  established  principles  of  private  rights  and  distributive 
justice.”  United  States  v.  Cruikshank,  (October  Term,  1875,) 
2 Otto,  000. 


485 


Authority. 

Are  women 
citizens  ? 


Designa- 

tions. 


Who  estab- 
lished the 
Constitu- 
tion? 


Citizens. 


Does  the 
amend- 
ment add 
anything  to 
the 

rights  ? 


1 


486 


CITIZENS,  503. 


[Amd’e,  Art.  XIV, 


How  is  the 
amend- 
ment to  be 
enforced? 


W hat  are 
privileges 
and  immu- 
nities ? 


Powers  of 
States  re- 
main. 


What  are 
some  of  the 
rights  of 
the  citizen? 


503.  “ No  State  shall  make  or  enforce  any  law 

WHICH  SHALL  ABRIDGE  THE  PRIVILEGES  AND  IMMUNI- 
TIES OF  citizens  OF  the  United  States.”  The  manner 
of  enforcing  this  amendment  will  depend  on  the  character  of 
the  privilege  or  immunity  in  question.  If  simply  prohibitory 
of  governmental  action,  there  will  be  nothing  to  enforce 
until  such  action  is  undertaken.  When  the  provision  is  vio- 
lated by  an  obnoxious  law,  such  law  is  void,  and  all  acts 
under  it  will  be  trespasses.  The  legislation,  required  would 
be  a preventive  or  compensative  remedy.  The  United  States 
v.  Cruikshank,  1 Woods,  327. 

In  Paul  v. Virginia (8  Wallace,  180)  the  court,  in  expounding 
this  clause  of  the  Constitution,  says  that  “the  privileges  and 
immunities  secured  to  citizens  of  each  State  in  the  several 
States  are  those  which  are  common  to  the  citizens  in  the 
latter  States,  under  their  constitutions  and  laws,  by  virtue 
of  their  being  citizens.”  The  constitutional  provision  there 
alluded  to  did  not  create  those  rights,  which  it  called  privi- 
leges and  immunities  of  citizens  of  the  States ; it  threw  around 
them  in  that  clause  no  security  for  the  citizen  of  the  State 
where  exercised,  nor  did  it  pretend  to  curtail  the  power  of 
the  States  over  them.  Its  sole  purpose  was  to  declare  to  the 
several  States  that  whatever  those  rights  are,  as  you  grant 
or  establish  them,  or  as  you  limit  or  qualify  them,  or  impose 
restrictions  on  their  exercise,  the  same,  no  more  nor  less,  shall 
be  the  measure  of  the  rights  of  citizens  of  other  States  within 
your  jurisdiction. 

Was  it  the  purpose  of  the  framers  of  the  fourteenth  amend- 
ment, by  the  simple  declaration  that  no  State  shall  make  or 
enforce  any  laws  which  shall  abridge  the  privileges  and  immu- 
nities of  citizens  of  the  United  States,  to  transfer  the  security 
and  protection  of  all  the  civil  rights  which  we  have  mentioned 
from  the  States  to  the  federal  Government?  And  where  it  is 
declared  that  Congress  shall  have  power  to  enforce  that  arti- 
cle, was  it  intended  to  bring  within  the  power  of  Congress 
the  entire  domain  of  civil  rights  heretofore  belonging  exclus- 
ively to  the  States?  The  majority  of  the  court  thought  not. 

No  case  in  this  court  until  that  of  Ward  v.  Maryland  in  1872 
required  a consideration  of  those  words  as  used  in  the  original 
Constitution  in  reference  to  citizens  of  the  States. 

One  of  these  is  well  described  in  the  case  of  Crandall  v . 
Nevada,  6 Wallace,  36.  It  is  said  to  be  the  right  of  the  citi- 
zen of  this  great  country,  protected  by  implied  guaranties  of 
its  Constitution,  u to  come  to  the  seat  of  government  to  assert 
any  claim  he  may  have  upon  that  Government,  or  transact 
any  business  he  may  have  with  it,  to  seek  its  protection,  to 
share  its  offices,  to  engage  in  administering  its  functions. 
He  has  the  right  to  free  access  to  its  seaports,  through  which 
all  operations  of  foreign  commerce  are  conducted,  to  the  sub- 
treasuries, land  offices,  and  courts  of  justice  in  the  several 
States.”  And,  quoting  from  the  language  of  Chief  Justice 


Sec.  1.] 


citizens,  503,  504. 


487 


Taney,  in  another  case,  it  is  said  uthat  for  all  the  great  pur- 
poses for  which  the  Federal  Government  was  established  we 
are  one  people,  with  one  common  country.  We  are  all 
citizens  of  the  United  States;”  and  it  is  as  such  citizens 
that  these  rights  are  supported  in  this  court  in  Crandall  v . 
Nevada. 

Another  privilege  of  a citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  Government 
over  his  life,  liberty,  and  property  when  on  the  high  seas,  or 
within  the  jurisdiction  of  a foreign  government.  Of  this 
there  can  he  no  doubt,  nor  that  the  right  depends  upon  his 
character  as  a citizen  of  the  United  States.  The  right  to 
peaceabty  assemble  and  petition  for  a redress  of  grievances,  the 
privilege  of  the  writ  of  habeas  corpus , are  rights  of  the  citizen 
guaranteed  by  the  Federal  Constitution.  The  right  to  use 
the  navigable  waters  of  the  United  States,  however  they  may 
penetrate  the  territories  of  the  several  States,  all  rights  se- 
cured to  our  citizens  by  treaties  with  foreign  nations,  are 
dependent  upon  citizenship  of  the  United  States  and  not  citi- 
zenship of  a State.  One  of  these  privileges  is  conferred  by 
the  very  article  under  consideration.  It  is,  that  being  a citi- 
zen of  the  United  States  any  person  can  of  his  own  volition 
become  a citizen  of  any  State  of  the  Union  by  acquiring  a 
residence  therein,  with  the  same  rights  as  other  citizens  of 
that  State. 

We  are  not  without  judicial  interpretation,  therefore,  both 
State  and  national,  of  the  meaning  of  this  clause.  It  is  suffi- 
cient to  say  here  that  under  no  construction  of  the  third 
provision  that  we  have  ever  seen,  nor  any  that  we  deem  ad- 
missible, can  the  restraint  imposed  by  the  State  of  Louisiana 
upon  the  exercise  of  their  trades  by  the  butchers  of  New 
Orleans  be  held  to  be  a deprivation  of  property  within  the 
meaning  of  that  provision.  Slaughter  House  Cases,  16  Wall., 
76,  77. 


504.  “Nor  shall  any  State  deny  to  any  person 

WITHIN  ITS  JURISDICTION  THE  EQUAL  PROTECTION  OF 

the  laws.”  In  the  light  of  the  history  of  these  amend- 
ments, and  the  pervading  purpose  of  them,  it  is  not  difficult 
to  give  a meaning  to  this  clause.  The  existence  of  laws  in 
the  States  where  the  newly-emancipated  negroes  resided, 
which  discriminated  with  gross  injustice  and  hardship  against 
them  as  a class,  was  the  end  to  be  remedied  by  this  clause, 
and  by  it  such  laws  are  forbidden.  But  if  the  States  did  not 
conform  their  laws  to  its  requirements,  then  by  the  fifth 
section  of  the  article  Congress  was  authorized  to  enforce  it 
by  suitable  legislation.  (The  Slaughter-House  Cases,  75-82. 

Justice  Field  read  the  dissenting  opinion  on  behalf  of  the 
Chief  Justice,  Justices  Swayne,  Bradley,  and  himself.  And 
Mr.  Justice  Bradley  dissented  in  an  able  opinion. 

36 


Taney. 


And  others? 


Habeas 

corpus. 


What  are 
not? 


Define  this 
clause. 


State  laws. 


488 


Define  this 
clause. 


Dissentient 

opinion. 


What  are 
the  basis  of 
representa- 
tion and 
the  excep- 
tions ? 


CITIZENS,  505.  [Amd’s,  Art.  XIV, 

505.  “ XOR  SHALL  ANY  STATE  DEPRIVE  ANY  PERSON 
OF  LIFE,  LIBERTY,  OR  PROPERTY  WITHOUT  DUE  PROCESS 
OF  law.”  Prior  to  the  amendments  the  police  laws  regulat- 
ing* the  traffic  in  liquor  raised  no  question  under  the  Federal 
Constitution.  Wynehamer  v.  The  People,  3 Kern.,  486,  is  a 
single  case  denying  the  power  of  a State  to  destroy  the  traffic 
in  liquor.  And  this  right  is  not  one  of  those  growing  out  of 
the  citizenship  of  the  United  States.  (Slaughter-House 
Cases,  16  Wall.,  36.)  Bartemyer  v.  Iowa,  18  Wall.*  132, 133. 
Justices  Bradley,  Field,  and  S wayne  concurred,  but  denied 
the  applicability  of  the  Slaughter-House  Case,  and  also  the 
soundness  of  that  case. 

Mr.  Justice  Field,  in  a very  able  opinion,  insisted  that  the 
XIYth  amendment  had  taken  away  the  power  of  the  State 
to  parcel  out  to  favorite  citizens  the  ordinarjr  trades  and  call- 
ings of  life  ; and  that  while  prior  to  this  and  the  XIHth 
amendment  the  States  had  supreme  authority  over  all  such 
matters ; and  the  national  Government,  except  in  a few  par- 
ticular cases,  could  afford  no  protection  to  the  individual 
against  arbitrary  and  oppressive  legislation.  He  concludes 
that  the  amendments  grew  out  of  the  feeling  that  the  Union 
was  worthless  if  every  citizen  could  not  be  protected  in  all 
his  fundamental  rights  everywhere ; that  the  amendments 
were  not  primarily  intended  to  confer  citizenship  on  the 
negro  race — they  had  a broader  purpose ; were  intended  to 
justify  legislation,  extending  the  protection  of  the  national 
Government  over  the  common  right  of  all  citizens,  and  thus 
to  obviate  the  objections  to  legislation  for  the  mere  protection 
of  the  emancipated  race.  It  was  intended  to  make  it  possi- 
ble for  all  persons,  of  every  race  and  color,  to  live  in  peace 
and  security  wherever  the  jurisdiction  of  the  nation  extended. 

The  XIVth  amendment  recognized  a national  citizenship, 
and  declared  that  the  privileges  and  immunities  which  em- 
brace the  fundamental  rights,  which  belong  to  all  citizens  of 
free  governments  should  not  be  abridged  by  any  State. 
This  national  citizenship  is  primary,  not  secondary.  Barte- 
meyer  v.  Iowa,  18  Wall.,  137-141. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respect- 
ive numbers,  counting  the  whole  number  of  persons 
in  each  State,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice  President  of  the 
United  States,  Representatives  in  Congress,  the 
executive  and  judicial  officers  of  a State,  or  the 
members  of  the  legislature  thereof,  is  denied  to  any 


Sec.  1,  2.] 


REPRESENTATIVES,  506,  507. 


489 


of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in 
such  State. 

506,  “ Representatives  shall  be  apportioned 

AMONG  THE  SEVERAL  STATES  ACCORDING  TO  THEIR 
RESPECTIVE  NUMBERS.”  [The  views  of  the  editor  as  to 
whether  section  supra  was  clause  3 of  section  2,  article  I,  as 
to  direct  taxes,  has  been  repealed,  are  given  in  note  302.  The 
question  is  still  open,  and  it  is  hardly  probable  that  it  will  be 
answered  by  strict  logic  and  the  weight  of  precedent.] 

Women  and  children  are  persons,  and  so  thejr  always  were, 
and  citizens  likewise.  They  are  counted  in  the  numeration  ; 
but  they  are  not  necessarily  voters.  Minor  v.  Happersett,  21 
Wall.,  174. 

50T.  “Counting  the  whole  number  of  persons.” 
The  Committee  on  Apportionment  reported  the  following 
basis  of  representation  in  Congress,  under  the  ninth  census, 
which  was  adopted  in  the  acts  of  2 February,  1872,  and  May 
30, 1872,  and  re-enacted  in  the  Revised  Statutes,  sec.  20.  The 
right-hand  column  is  the  editor’s,  showing  the  representation 
as  it  now  stands. 


The  male 

inhabit- 

ants. 


What  are 
the  num- 
bers? 


How  are 
representa- 
tives appor- 
tioned ? 


490 


APPORTIONMENT,  507.  [Amd’s,  Art.  XIV 


Table. 


How  was 
the  basis 
reached? 


Table  of  Apportionment  of  Representation  according  to  the 
Ninth  Census . 

Ratio,  131,425. 


States. 


Alabama 

Arkansas 

California 

Connecticut 

Delaware 

Florida 

Georgia 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts.... 

Michigan 

Minnesota 

Mississippi 

Missouri 

Nebraska 

Nevada 

Hew  Hampshire. 

New  Jersey 

New  York 

North  Carolina... 

Ohio 

Oregon 

Pennsylvania 

Rhode  Island 

South  Carolina... 

Tennessee 

Texas 

Vermont 

Virginia 

West  Virginia.... 
Wisconsin 

Total 


Representative  pop- 
ulation. 

Number  of  Repre- 
sentatives on  even 
division. 

Fractions. 

Representatives  on 
fractions. 

Whole  number  of 
Representatives 

Revised  Statute,  sec- 
tion 20. 

906,992 

7 

77,017 

1 

8 

8 

484,471 

3 

90.196 

1 

4 

4 

560,247 

4 

34,547 

4 

4 

537,454 

4 

11,754 

4 

4 

125,015 

1 

1 

1 

187.748 

1 

56,323 

1 

2 

1,184,100 

9 

1,284 

9 

9 

2,539,891 

19 

42,810 

19 

19 

1,680,637 

12 

103,537 

1 

13 

13 

1,191,792 

9 

8,967 

9 

9 

364.399 

2 

101,549 

1 

3 

3 

1,321,011 

10 

6,761 

10 

10 

726,915 

5 

69,790 

1 

6 

6 

626,915 

4 

101,215 

1 

5 

5 

780,894 

5 

123,769 

1 

6 

6 

1,457,351 

11 

11,676 

11 

11 

1,184,050 

9 

1,234 

9 

9 

439,706 

3 

45,431 

3 

3 

827,922 

6 

39,372 

6 

6 

1,721,295 

13 

12,770 

13 

13 

122,993 

1 

1 

1 

42,491 

1 

1 

1 

318,300 

2 

55,450 

2 

3 

906,096 

6 

117,516 

1 

7 

7 

4,382,750 

33 

45,734 

33 

33 

1,671,361 

8 

19,961 

8 

8 

2,665.200 

20 

36,760 

20 

20 

90,923 

1 

1 

1 

3,521,791 

26 

104,741 

1 

27 

27 

217,353 

1 

85,928 

1 

2 

2 

705,606 

5 

48,481 

5 

5 

1,258,520 

9 

75,695 

1 

10 

10 

818,579 

6 

30,629 

6 

6 

330,551 

2 

67,701 

1 

3 

3 

1,225.163 

9 

42,338 

9 

9 

442,014 

3 

47,739 

3 

3 

1,054,670 

8 

3,270 

8 

8 

38,113,253 

278 

1,721,381 

12 

290 

292 

The  committee,  however,  in  addition  to  the  twelve  mem- 
bers assigned  to  fractions  by  the  above  table,  assign  one  to 
New  Hampshire  and  one  to  Florida,  making,  in  all,  a House 
of  292.  The  reason  for  this  is,  that  greater  injustice  will 


Sec.  2.] 


APPORTIONMENT,  507,  508. 


491 


be  done  each  of  these  States  by  not  giving  it  the  additional 
Representative  than  to  the  other  States  by  giving  it. 

By  this  apportionment  nine  States,  to  wit : Sew  Hamp- 
shire, Vermont,  New  York,  Pennsylvania,  Indiana,  Tennes- 
see, Louisiana,  Alabama,  and  Florida,  get  each  one  more 
member  than  the  number  assigned  by  the  bill  which  has 
already  become  a law,  and  the  committee  report  the  accom- 
panying bill,  giving  each  of  these  States  an  additional  Repre- 
sentative, and  recommend  its  passage.  Ho.  Doc.  42d  Cong. 
2d  Sess.,  No.  28. 

By  this  census  three-fifths  of  four  and  a half  million  of 
“other  persons”  are  counted  in  the  basis  of  representation 
who  would  have  been  excluded  under  their  former  condition. 
This  adds  20  members  to  the  section  where  they  reside.  The 
grievance  of  those  claiming  the  increase  and  all  the  political 
status  for  themselves,  is,  that  the  race  votes,  and  is  eligible  to 
the  honors,  and  divides  them. 

To  complete  the  numbers  of  people  of  the  United  States 
the  following  population  of  the  territories  is  added.  The 
population  of  the  States  corresponds  with  the  foregoing 
table,  with  a slight  variation  of  388  : 

States  and  Territories , 1870. 


The  United  States 

38,558,371 

The  States 

38,115,641 

The  Territories 

442,730 

1.  Arizona 

9 

9,658 

2.  Colorado 

4 

39,864 

3.  Dakota 

8 

14,181 

4.  District  of  Columbia 

# 

1 

131,700 

5.  Idaho 

7 

14,999 

6.  Montana 

6 

20,595 

7.  New  Mexico 

2 

91,874 

8.  Utah 

3 

86,786 

9.  Washington 

5 

23,955 

10.  Wyoming 

10 

9,118 

Compendium  of  Census,  p.  8. 


508.  “But  when  the  right  to  vote  at  any 

ELECTION,  &C.,  IS  DENIED,  THE  BASIS  OF  REPRESENTATION 
THEREIN  SHALL  BE  REDUCED,”  &C.  Although  Some  of 
the  States  still  have  a property  or  educational  basis,  it  is  not 
remembered  that  any  reduction  has  been  claimed  on  that  ac- 
count. None  are  now  excluded  from  right  to  vote  because 
of  participation  in  the  rebellion.  The  attempt  in  Tennessee, 
Missouri,  and  Arkansas  broke  down.  No  deduction  was 
made  for  disqualification  of  any  of  the  male  population  as 
voters. 


Fractions. 


Two-fifths 

counted. 


What  are 
the  total 
numbers? 


' 


If  the  right 
to  vote  be 
denied, 
what  is  the 
conse- 
quence ? 


492 


RIGHT  TO  VOTE,  508,509.  [Amd’s,  Art.  XIV, 


All  it  did. 


What  are 
the  rela- 
tions of  the 
Indians  not 
taxed  ? 


How  has 
Congress 
regarded 
them? 


Indians  na- 
tions? 


This  reduction  of  representation  establishes  that  the  ques- 
tion as  to  who  should  vote  was  still  left  with  the  States ; and 
it  excludes  the  idea  that  women,  who  are  not  allowed  to  vote 
by  the  State  constitutions,  may  yet  assert  the  right  under 
this  amendment.  Minoru.  Happersett,  21  Wall.,  177. 

509.  “ Excluding  Indians  not  taxed.”  The  four- 
teenth amendment  has  no  effect  whatever  upon  the  status  of 
the  Indian  tribes  within  the  limits  of  the  United  States,  and 
does  not  annul  the  treaties  previously  made.  The  relations 
which  exist  between  the  Government  and  the  Indian  tribes, 
making  it  plain  that  Congress  has  uniformly  respected  the 
right  of  the  Indians  to  govern  themselves. 

Congress  has  never  regarded  the  Indian  tfibes  as  subject 
to  the  municipal  jurisdiction  of  the  United  States.  On  the 
contrary  they  have  uniformly  been  treated  as  nations,  and  in 
that  character  held  responsible  for  the  crimes  and  outrages 
committed  by  their  members,  even  outside  of  territorial  limits. 
And  inasmuch  as  the  Constitution  treats  Indian  tribes  as  be- 
longing to  the  rank  of  nations,  capable  of  making  treaties, 
it  is  evident  that  an  act  of  Congress  which  should  assume  to 
treat  the  members  of  a tribe  as  subject  to  the  municipal 
jurisdiction  of  the  United  States  would  be  unconstitutional 
and  void.  In  the  opinion  of  the  committee  the  Constitution 
and  the  treaties,  acts  of  Congress,  and  judicial  decisions  re- 
ferred to,  all  speak  the'same  language  upon  this  subject,  and 
all  point  to  the  conclusion  that  the  Indians,  in  tribal  condi- 
tion, have  never  been  subject  to  the  jurisdiction  of  the  United 
States  in  the  sense  in  which  the  term  u jurisdiction  ” is  em- 
ployed in  the  fourteenth  amendment  to  the  Constitution. 
The  Government  has  asserted  a political  supremacy  over  the 
Indians,  and  the  treaties  and  laws  quoted  from,  present  these 
tribes  as  ‘‘domestic,  independent  nations,”  separated  from 
the  States  of  the  Union,  within  whose  limits  they  are  lo- 
cated, and  exempt  from  the  operation  of  State  laws,  and  not 
otherwise  subject  to  the  control  of  the  United  States  other 
than  is  consistent  with  their  character  as  separate  political 
communities  or  States.  Their  right  of  self-government  and 
to  administer  justice  among  themselves  after  their  rude 
fashion,  even  to  the  extent  of  inflicting  the  death  penalty, 
has  never  been  questioned.  And  while  the  United  States 
have  provided  by  law  for  the  punishment  of  crimes  com- 
mitted by  Indians  straggling  from  the  tribes,  and  crimes 
committed  by  Indians  upon  white  men  lawfully  within  the 
reservations,  the  Government  has  carefully  abstained  from 
attempting  to  regulate  their  domestic  affairs  and  from  pun- 
ishing crimes  committed  by  one  Indian  against  another  in 
the  Indian  country.  Whenever  we  have  dealt  with  them  it 
has  been  in  their  collective  capacity  as  a tribe,  and  not  with 
their  individual  members,  except  when  such  members  were 
separated  from  the  tribe  to  which  they  belonged,  and  then 


Sec.  2,  3.]  INDIANS,  509. 

we  have  asserted  such  jurisdiction  as  every  nation  exercises 
over  the  subjects  of  another  independent  sovereign  nation 
entering  its  territory  and  violating  its  laws. 

During  the  war,  slavery  had  been  abolished  and  the  former 
slaves  had  become  citizens  of  the  United  States,  conse- 
quently, in  determining  the  basis  of  representation  in  the 
fourteenth  amendment,  the  clause  “ three-fifths  of  all  other 
persons”  is  wholly  omitted,  but  the  clause  “excluding  In- 
dians not  taxed  ” is  retained*  The  inference  is  irresistible 
that  the  amendment  was  intended  to  recognize  the  change 
in  the  status  of  the  former  slave  which  had  been  effected 
during  the  war,  while  it  recognizes  no  change  in  the  status 
of  the  Indians.  * * * The  Indians  were  excluded  because 
they  were  not  citizens.  For  these  reasons  the  committee  do 
not  hesitate  to  say  that  the  Indian  tribes  within  the  limits  of 
the  United  States,  and  the  individuals,  members  of  such 
tribes,  while  they  adhere  to  and  form  a part  of  the  tribes  to 
which  they  belong,  are  not,  within  the  meaning  of  the  four- 
teenth amendment,  “subject  to  the  jurisdiction”  of  the 
United  States,  and  therefore  that  such  Indians  have  not  been 
made  citizens  of  the  United  States  by  virtue  of  that  amend- 
ment ; and  the  committee  say  that  if  they  are  correct  in  this 
conclusion  it  follows  that  the  treaties  heretofore  made  be- 
tween the  United  States  and  the  Indian  tribes  are  not  an- 
nulled by  that  amendment. 

The  committee  say,  in  conclusion,  “it  is  pertinent  to  re- 
mark that  treaty  relations  can  properly  exist  with  Indian 
tribes  or  nations  only;  and  that  when  the  members  of  a 
tribe  are  scattered  they  are  merged  in  the  mass  of  our  peo- 
ple and  become  equally  subject  to  the  jurisdiction  of  the 
United  States.  It  is  believed  that  some  treaties  have  been 
concluded  and  ratified  with  fragmentary  straggling  bands  of 
Indians  who  had  lost  all  just  pretensions  to  the  tribal  charac- 
ter, and  this  ought  to  admonish  .the  treaty-making  power  to 
use  greater  circumspection  hereafter.”  (Carpenter’s  Report, 
14  Dec.,  1870.) 

So  far  as  this  report  denies  citizenship  to  the  Indian  tribes 
it  may  be  correct,  because  the  people  did  not  intend  other- 
wise in  adopting  the  amendment.  But  the  assumption  that 
the  tribes  are  independent  sovereign  States  is  not  supported 
by  judicial  authorities  or  legislative  action.  They  are  de- 
pendent subordinate  States.  Worcester  v.  Georgia,  6 Pet., 
515. 

Section  3.  No  person  shall  be  a Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and 
Vice  President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a member  of 


493 


Jurisdic- 

tion. 


Slavery. 


Page  67, 
clause  3. 


Why  the 
Indians  are 
excluded. 


How  can 
treaty  rela- 
tions exist? 


Remarks. 


Repeat  the 
disqualify- 
ing clause 


494 


PREVIOUS  OATH,  510,  511.  Amd’s,  Art.  XIV, 


The  officers 
disquali- 
fied. 


Congress,  or  as  an  officer  of  the  United  States,  or  as 
a member  of  any  State  Legislature,  or  as  an  execu- 
tive or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  en- 
gaged in  insurrection  or  rebellion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may,  by  a vote  of  two-thirds  of  each 
House,  remove  such  disability. 


Who  are  in-  510.  u HAVING  PREVIOUSLY  TAKEN  AN  OATH.”  It 
the^cfisa-11  whl  observed  that  the  persons  included  in  this  disability 
biiity?  clause  are  the  same  who  had  taken  an  official  oath  under 
Page  250,  clause  3 of  article  VI.  It  was  intended  to  make  the  obli- 
note  412.  gations  of  the  official  oath  to  support  the  Constitution  of  the 
United  States  higher  than  the  natural  allegiance  which 
every  man  bears  to  his  Government.  And  it  is  not  confined 
to  those  who  are  or  were  in  official  position  at  the  time  of 
engaging  in  insurrection,  rebellion,  or  treasonable  practices. 


What  is  the 
true  gram- 
matical 
construc- 
tion of  this 
phrase  ? 


Page  250, 
clause  3, 
note  412. 


511.  “ Shall  have  engaged  in  insurrection  or 
rebellion,”  &c.  The  grammatical  form  of  the  sentence 
places  the  verb  in  the  future  perfect  tense,  or,  as  older  gram- 
marians called  it,  in  the  future  pluperfect  tense.  The  nomin- 
ative or  subject  of  this  verb  is  who,”  which  is  the  pronoun 
for  the  antecedent wt  person.”  Grammatically  construed,  the 
sentence  would  mean  that  no  person,  who,  having  taken  the 
official  oath  required  by  article  VI,  clause  3,  who  afterward 
shall  have  engaged  in  insurrection,  &e.,  shall  be  a Senator, 
Representative  in  Congress,  or  hold  office. 

And  viewed  as  an  amendment  to  article  VI,  clause  3.  (to 
which  it  properly  belongs,)  it  would  read  : 

u The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  Legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States  and 
of  the  several  States,  shall  be  bound,  by  oath  or  affirmation, 
to  support  this  Constitution  ; but  no  religious  test  shall  ever 
be  required  as  a qualification  to  any  office  or  public  trust 
under  the  United  States.”  With  the  amendment: 

“But  if  any  of  these  persons,  after  having  taken  this  oath, 
shall  engage  in  insurrection  or  rebellion  against  the  United 
States,  or  give  aid  or  comfort  to  the  enemies  thereof,  he 
shall  not  hold  any  of  these  offices,  until  Congress,  by  a vote 
of  two-thirds  of  each  House,  shall  have  removed  such  dis- 


Whatisthe  ability.” 

gram  mat  ic-  Thus  viewed  it  would  have  no  reference  to  the  past,  and, 

tiorTof  Ui*e " f°l*  tlie  future  it  would  be  a wholesome,  conservative  guaranty 
sentence  ? for  peace.  Those  who  oppose  this  grammatical  construction 


Sec.  3.] 


TWO-THIRDS  VOTE,  511,512. 


495 


derive  little  aid  from  the  participial  phrase,  “who  having 
previously  taken  an  oath.”  This  fixes  a point  of  time  ante- 
rior to  the  act  of  treason,  which  is  necessary  to  the  idea  of  a 
perfect  future  tense.  Indeed,  they  would  force  the  sentence 
to  read  : “No  person,  who,  having  previously  taken  an  oath 
to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,” 
“shall  be  a Senator,”  &c. 

But  the  grammatical  construction  has  never  arrested  the 
attention  of  the  Congress  which  proposed  the  amendment, 
the  thousands  of  legislators  who  voted  its  ratification,  the 
thousands  whose  disabilities  have  been  removed,  nor  the 
Congressmen  wiio  have  voted  the  acts  of  oblivion.  By  com- 
mon consent  they  construe  the  sentence  as  though  it  read 
“ No  person  shall  be  a Senator,  &c.,  who,  having  previously 
taken  the  official  oath  to  support  the  Constitution  of  the 
United  State  has  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof.” 
Thus  the  amendment  has  been  made  to  apply  to.  and  ex- 
haust itself  upon,  the  late  rebellion.  The  author  would  be 
called  little  less  than  a lunatic  who  should  insist  that  the 
future  form  of  the  verb  is  never  substituted  for  the  imperfect 
or  perfect  tense.  And  did  not  the  author  believe  that  his 
book  will  be  read  after  the  generation  which  perpetrated  the 
literary  and  more  serious  blunders  of  the  unhappy  civil  wTar, 
shall  have  passed  away,  he  would  not  have  ventured  upon 
the  suggestion  of  inapt  grammar. 

51 2.  “ But  Congress  may  by  a two-thirds  vote  re- 
move such  disability.”  It  has  been  variously  estimated 
that  at  the  time  of  its  original  insertion  in  the  Constitution  it 
included  somewhere  from  15,000  to  30,000  persons,  but  as 
near  as  I can  gather  from  the  facts  in  the  case  it  included  only 
18,000  men  in  the  South.  This  disability  w^as  hardly  fixed 
on  the  South  until  we  began  in  this  hall  and  in  the  Senate 
chamber,  (when  we  had  more  than  two-thirds  Republican  in 
both  branches,)  to  remove  it,  and  the  very  first  bill  took  that 
disability  from  1,578  citizens  of  the  South.  The  next  bill  took 
it  from  3,526  gentlemen.  After  these  bills  specifying  individ- 
uals had  passed  through,  small  bills,  which  I will  not  further 
refer  to,  were  passed.  In  1872  the  Congress  of  the  United 
States,  by  the  vote  of  two-thirds  of  both  branches,  passed 
this  general  law:  “That  all  political  disabilities  imposed 
under  the  third  section  of  the  fourteenth  amendment  of  the 
Constitution  of  the  United  States  are  hereby  removed  from 
all  persons  whomsoever,  except  Senators  and  Representatives 
in  the  Thirty-sixth  and  Thirty-seventh  Congresses,  officers  of 
the  judicial,  military,  and  naval  service  of  the  United  States, 
heads  of  departments,  and  foreign  ministers  of  the  United 
States.”  Since  that  act  passed  a very  considerable  number  of 
gentlemen  included  in  it  have  been  specially  by  name  relieved 


Criticism. 


The  com- 
mon error. 


Repeat  the 
history  of 
this  remov- 
al of  disa- 
bitities. 


496 


PUBLIC  DEBT,  521.  Amd’s,  Art. XIV-XV, 


Blaine. 


There  yet 
remains. 


What  are 
the  restric- 
tions as  to 
the  validity 
of  the  pub- 
lic debt? 


What  is  the 
restriction 
as  to  vot- 
ing? 


from  disability;  but  I believe,  in  no  single  instance,  since  the 
act  of  May,  1872,  have  disabilities  been  taken  from  any  man 
unless  on  his  respectful  petition  to  Congress  asking  that  they 
should  be  removed;  and  I believe,  that  in  no  instance,  except 
one,  has  such  a petition  been  refused.  I have  had  occasion, 
by  conferences  with  the  Departments  of  JSTavy  and  War,  and 
by  reference  to  some  other  records,  to  be  able  to  state  to 
the  House,  with  more  accuracy  than  has  been  already  stated, 
the  number  of  gentlemen  who  are  still  under  disabilities. 
Those  who  were  officers  of  the  United  States  army,  educated 
at  the  expense  of  the  Government  at  West  Point,  and  who 
joined  the  rebellion,  and  are  still  under  disabilities,  are  esti- 
mated at  the  War  Department  at  325.  The  number  of  such 
persons  in  the  navy  are  295,  and  those  coming  under  the 
other  heads,  members  of  the  Thirty-sixth  and  Thirty-seventh 
Congresses,  judges,  hea^ls  of  departments,  and  foreign  min- 
isters, I am  not  able  to  give  the  number  exactly,  but  the 
whole  number  of  persons  now  under  disability  in  the  South 
is  about  750.  (Speech  of  Mr.  Blaine,  on  his  amendment  to 
exclude  Jefferson  Davis  from  general  amnesty,  January, 
1876.) 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United 
States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave ; but  all  such 
debts,  obligations,  and  claims  shall  be  held  illegal 
and  void. 

Section  5.  The  Congress  shall  have  power  to  en- 
force, by  appropriate  legislation,  the  provisions  of 
this  article. 


Article  XV. 

Section  1.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States,  or  by  any  State,  on  account  of  race, 
color,  or  previous  condition  of  servitude. 


Sec.  3,  4,  5, 1,  2.  RIGHT  TO  VOTE,  512,  513. 


49T 


Section  2.  The  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation. 

513.  “ Shall,  not  be  denied  or  abridged.”  Al- 
though negative  in  form,  in  substance  this  article  confers  a 
positive  right  which  did  not  exist  before.  The  right  shall 
not  be  denied ; it  shall  be  enjoyed,  and  the  party  shall  be 
exempt  from  the  disability  of  race,  color,  or  previous  condi- 
tion of  servitude,  as  respects  the  right  to  vote.  In  terms  it 
has  a general  application  to  all,  but  from  its  history  it  was 
principally  intended  to  confer  upon  the  colored  race  the 
right  to  citizenship.  (The  Slaughter-House  Case,  16  Wall., 
81.)  The  United  States  v.  Cruikshank,  1 Woods,  321. 

This  amendment  gives  no  new  right  to  regulate  elections, 
except  to  enforce  this  inhibition.  It  relates  only  to  discrimina- 
tions on  account  of  race,  color,  or  previous  condition  of  ser- 
vitude and  is  a prohibition  against  making  such  discrimina- 
tions. The  enforcement  act,  in  so  far  as  it  is  general  and 
universal  in  its  application,  is  unconstitutional.  Id. 

The  amendment  does  not  confer  the  right  of  suffrage  upon 
any  one.  It  prevents  the  States  or  the  United  States,  how- 
ever, from  giving  preference,  in  this  particular,  to  one  citi- 
zen of  the  United  States  over  another,  on  account  of  race, 
color,  or  previous  condition  of  servitude.  Before  its  adop- 
tion this  could  be  done.  It  was  as  much  within  the  power  of 
a State  to  exclude  citizens  of  the  United  States  from  voting 
on  account  of  race,  &c.,  as  it  was  on  account  of  age,  prop- 
erty, or  education.  Now  it  is  not.  If  citizens  of  one  race, 
having  certain  qualifications,  are  permitted  by  law  to  vote, 
those  of  another  having  the  same  qualifications  must  be. 
Previous  to  this  amendment  there  was  no  constitutional 
guaranty  against  this  discrimination.  Now  there  is.  It  fol- 
lows that  the  amendment  has  invested  the  citizen  of  the 
United  States  with  a new  constitutional  right  which  is  within 
the  protecting  power  of  Congress.  That  right  is  exemption 
from  discrimination  in  the  exercise  of  the  elective  franchise, 
on  account  of  race,  color,  or  previous  condition  of  servitude. 
This,  under  the  express  provisions  of  the  second  section  of 
the  amendment,  Congress  may  enforce  by  “appropriate 
legislation.”  United  States  v.  Keese,  (October  Term,  1875,) 
2 Otto,  000. 

A statute  which  creates  a new  offense  under  this  act 
should  be  clear  and  explicit.  That  in  existence  fails  of  its 
object,  (16  Stat.,  140.)  Id.  The  right  of  suffrage  is  not  a 
necessary  attribute  of  national  citizenship,  but  an  exemp- 
tion from  discrimination  in  the  exercise  of  that  right  on  ac- 
count of  race,  &c.,  is.  The  right  to  vote  in  the  States  comes 
from  the  States,  but  the  right  of  exemption  from  the  prohib- 
ited discrimination  comes  from  the  United  States.  The  first 
has  not  been  granted  or  secured  by  the  Constitution  of  the 
United  States,  but  the  last  has  been.  United  States  v.  Cruik- 
shank, (October  Term,  1875,)  2 Otto,  000. 


What  isthe 
the  inter- 
pretation of 
this  amend- 
ment? 


Does  it  con- 
fer the 
right  of 
suffrage  ? 


« 


From 
whence  is 
derived  the 
right  of 
suffrage  ? 


I 


# 

w 


■ 


' 


1 


. 

« 


» 


ANALYTICAL  INDEX 


The  texts  of  the  Constitution  are  arranged  analytically  and  alpha 
betically.  The  Articles , Sections , and  Clauses  are  shown  both  as 
to  the  Constitution  noted  and  not  noted.  The  Preface , Declaror- 
tion  of  Independence , Articles  of  Confederation  and  the  author's 
notes  are  likewise  copiously  indexed. 


Art.  sec. 

Abandoned  lands.  (Bee  Freedmen.) 

Abatement.  Want  of  citizenship  must  be  pleaded  in,  n.  206,  p.  202 

Abeyance.  Offices  when  held  in,  n.  184,  § 3. 

Absence.  In  the  absence  of  the  Vice-President  the  Senate  shall 

choose  a President  pro  tem 1 3 

Practice  as  to ; list  of  Presidents  pro  tern.,  n.  38. 

Absent  members.  A smaller  number  than  a majority  of  either 
House  of  Congress  may  compel  the  attendance  of  absent 
members,  in  such  manner,  and  under  such  penalties,  as 
each  house  may  provide 1 » 5 

Absent  suitors.  Effect  of  judgments  against,  not  served,  n.  218. 

Not  republican  government  to  render  judgment  against, 
n.  233. 

Absolute  rights  of  private  property  is  an  universal  common  law 
principle,  n.  258.  4 

Absolutely  necessary.  The  strongest  qualification  of  necessary, 

•n.  162.  Necessary  not  used  in  the  sense  of,  n.  128,  p.  139. 

Accept.  No  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  shall,  without  the  consent  of  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  States. . 1 9 

Office  defined,  n.  151.  U.  S.  Marshal  cannot  hold  two 
offices,  n.  151,  p.  153.  To  accept  a new  office  vacates  the 
first,  n.  63.  A pardon  must  be  accepted  before  it  will  take 
effect,  n.  177. 

Account.  A regular  statement  and  account  of  the  receipts  and 
expenditures  of  all  public  money  shall  be  published  from 

time  to  time 1 9 

How  these  accounts  are  kept,  n.  149. 

Accusation.  In  all  criminal  prosecutions,  the  accused  to  be 
informed  of  the  nature  and  cause  of  the  accusation. 

Amendments 6 

Accused  defined  and  the  subject  discussed,  n.  260. 

Acquisition  of  territory.  A consequence  of  the  war  power,  notes 
118,  274 ; and  of  the  right  to  admit  new  States,  n.  229.  The 
history  and  right  to  acquire  discussed,  n.  232.  Kevo- 
lutionary  results  of,  n.  286. 

Acquittal.  No  one  shall  be  tried  for  the  same  crime  after,  n.  255. 

Act  as  President.  In  case  of  the  removal,  death,  resignation,  or 
inability  of  both  the  President  and  Vice-President,  the 


cl. 


5 


1 


8 


7 


499 


pp. 


24,  78 


25,84 


31,152 


81, 151 
44  263 


4 


500 


INDEX, 


« Art.  sec. 

Congress  shall,  by  law,  declare  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed,  or  a President  shall  be  elected.  2 1 

A list  of  the  Vice-Presidents  who  have  acted  as  Presi- 
dent, n.  172.  The  act  of  Congress  regulating  who  6hall 
act,  n.  172. 

Action.  (See  Case , Suits.) 

Acts,  records,  and  judicial  proceedings.  Full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  And  the  Con- 
gress may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  judicial  proceedings  shall  be  proved, 

and  the  effect  thereof 4 1 

Full  faith  and  credit  defined,  n.  218.  The  law  of  Con- 
gress for  proving  these  acts,  n.  219.  p.  218.  Must  be  under 
the  Great  Seal,  Id.  Copied  from  the  Confederation,  p.  10. 

Acts  of  Congress.  To  regulate  time  and  manner  of  electing 
senators,  n.  30.  To  fix  a standard  of  weights  and  measures, 
n.  102,  p.  117.  To  regulate  the  tenure  of  office,  n.  184. 
Prescribing  manner  of  proving  laws,  records,  &c.,  n.  219. 

The  several  reconstruction  acts,  n.  276. 

Take  effect  from  their  approval  by  the  President,  n.  66. 

Adam,  Andrew,  of  Pennsylvania.  Signed  the  Articles  of  Con- 
federation, p.  21. 

Adams,  John.  Delegate  from  Mass.  Signed  the  Pec.  of  Ind.  p.  7, 

First  Vice-President  of  U.  S.,  n.  37.  Second  President,  n. 

166.  Messages  of,  as  President,  delivered  to  Congress  in 
person,  n.  187. 

Adams,  John  Quincy.  Sixth  President  of  the  U.  S.,  n.  166. 

Adams,  Samuel.  Delegate  from  Mass.  Signed  the  Dec.  of  Ind.  p. 

7 ; and  the  Articles  of  Confederation,  p.  21. 

Adams,  Thomas,  of  Virginia.  Signed  the  Articles  of  Confedera- 
tion, p.  21. 

Adjourn  from  day  to  day.  A smaller  number  than  a majority  of 

each  house  of  Congress  may  adjourn  from  day  to  day. ...  1 5 

Adjourn.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  n9r  to  any  other  place  than  that  in  which  the 
two  houses  may  be  sitting 1 5 

Adjournment  of  the  Congress  of  the  Confederation  not  longer  than 
six  months,  Art.  IX.  p.  18. 

Adjournment.  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall  not 

be  a law 1 7 

The  President  must  receive  the  bill  ten  entire  days 
before,  or  it  will  not  become  a law,  n.  69. 

Adjournment.  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a question  of  adjournment), 
shall  be  presented  to  the  President  of  the  United  States. 

(For  proceedings,  see  Resolution.) 1 7 

Adjournment.  In  case  of  disagreement  between  the  two  houses 
of  Congress  with  respect  to  the  time  of  adjournment,  the 
President  may  adjourn  them  to  such  time  as  he  shall  think 

proper 2 3 

This  power  has  never  been  exercised,  n.  18S. 

Adjutant-General.  An  officer  in  the  army,  n.  124. 

Administration.  Effect  of  judgment  and  sales  under,  n.  161. 

Administration  of  justice.  He  (George  III.)  has  obstructed  the 
Dec.  of  Ind.  p.  8. 

Admiral.  Chief  officer  in  the  navy,  n.  128. 

Admiralty  and  maritime  jurisdiction.  The  judicial  power  shall 

extend  to  all  cases  of  admiralty  and  maritime  jurisdiction.  8 2 

Defined;  extent  of  jurisdiction  ; has  been  enlarged  to 
navigable  waters,  n.  208. 


cl. 

5 


1 


4 


2 


8 


1 


PP- 

34,169 


88, 218 


25,84 

26,68 


27,91 


28,93 

36,188 


87, 194 


INDEX, 


501 


Art.  sec. 

Admitted.  New  States  may  be  admitted  by  the  Congress  into 

this  Union . 4 3 

Effect  of  admission,  n.  229.  List  of  new  States  and  dates 
of  admission,  n.  230. 

Adoption  of  this  Constitution.  All  debts  contracted  or  engage- 
ments entered  into  before  the  adoption  of  this  Constitu- 
tion, shall  be  as  valid  against  the  United  States  under  this 

Constitution  as  under  the  Confederation . 6 

This  article  explained,  n.  237.  When  the  States  shall 
have  adopted  the  14th  constitutional  amendment,  n.  276, 
p.  283,  § 5. 

Advice  and  consent  of  the  Senate.  President  shall  have  power, 
by  and  with  the,  to  make  treaties  and  appoint  ambassadors 

and  all  other  officers 2 2 

When  and  how  given,  n.  178.  When  necessary  to  an 
appointment,  n.  179.  Effect  of,  in  fixing  tenure  of  office,  n. 

184,  p.  179,  § 1.  To  advise  upon  suspension,  if  the  Senate 
refuse  to  concur,  Id.  § 2.  If  the  Senate  fail  to  advise,  the 
office  to  remain  in  abeyance,  n.  184,  p.  180,  § 3.  (See  Ten- 
ure of  Office.) 

Affirmation.  (See  Oath  or  Affirmation , n.  242.) 

Age.  Qualification  for  a representative  in  Congress,  25  years 1 2 

See  remarks  upon,  n.  46. 

Age.  Qualification  fora  senator  in  Congress,  30  years 1 3 

Age.  Qualification  for  President  of  the  United  States,  35  years. . . 2 1 

35  years  an  indispensable  requisite,  n.  171. 

Age.  Qualification  for  Vice-President  of  the  United  States,  35 

years.  Amendments 12 

Agreement  or  compact.  No  State  shall,  without  the  consent  of 
Congress,  enter  into  any  agreement  or  compact  with  an- 
other State  or  a foreign  power 1 10 

Relates  to  what  prohibitions;  may  enter  into  what,  n.' 

164. 

Alabama.  Qualifications  for  suffrage  in,  n.  17,  p.  58.  Six  repre- 
sentatives, by  the  ceffsus  of  1860,  n.  24.  Population  of,  in 
every  decade,  n.  24,  pp.  69-71.  Did  not  vote  in  the  Presi- 
dential election  of  1S64,  n.  167.  Admitted  as  a State,  n. 

230.  Ratified  13th  amendment,  n.  274.  Rejected  14th 
amendment,  n.  275.  One  of  the  non-reconstructed  States, 
n.  276.  Its  provisional  government  defined,  n.  276,  p.  286, 

§ 1.  Action  of  its  convention  upon  reconstruction,  n. 

277.  Number  of  registered  voters  under  the  reconstruc- 
tion laws,  n.  2T8. 

Alien.  A naturalized  is  a natural  bornsubject,  from  birth,  notes  274 
to  276. 

Alien  enemies.  During  war  the  inhabitants  of  each  country  are, 
n.  118.  The  inhabitants  of  the  insurgent  and  rebel  States 
were  not,  during  the  rebellion,  n.  213. 

Alienage  is  an  indispensable  element  in  the  process  of  naturaliza- 
tion, n.  274,  i>.  276. 

Aliens,  or  persons  of  foreign  birth,  not  eligible  as  President  or 


Vice-President  of  the  United  States 2 1 

Amendments 12 


Effect  of  naturalization  upon,  notes  93,  209.  Of  what  suits 
courts  Have  jurisdiction.  Cannot  maintain  a real  action  ; de- 
fined. n.  209.  May  take  and  hold  real  estate,  n.  209,  p.  204. 
May  be  made  citizens  by  revolution  or  general  law.  The 
Constitution  provides  for  naturalization  of,  n.  167.  See 
Citizen . notes  19, 30,  35,  63,  69,  170,  206,  220,221,  274,275, 
277.  Negroes  born  in  United  States  cannot  he,  n.  274. 

Allegation.  Citizenship  of  different  States  must  be  averred  to 
give  jurisdiction,  n.  206. 

Allegiance.  Defined,  n.  220,  p.  164.  An  alien  is  one  born  out 
of,  n.  209.  Treason  is  a breach  of,  n.  215.  Native  born 
owe  allegiance  to  the  United  States,  n.  220.  All  persons 
born  in  the,  of  the  United  States,  are  native  citizens 
thereof,  n.  274.  Paramount  to  the  United  States  and 
qualified  to  the  States,  n.  118,  p.  129,  Pref.  p.  xiii.  Indians 


cl. 

1 


1 


2 


2 

3 

4 

1 

3 


4 

3 


pp. 

30,234 


40, 247 


35, 174 


23,  64 

24,  77 
34,169 

46,164 

32,161 


34,167 

48,166 


502 


INDEX 


Art.  sec. 

owe  no,  to  the  United  States,  n.  92,  p.  112.  “That  I will 
boar  true  faith  and  allegiance  to  the  United  States,”  n. 

242,  p.  251.  Native  born  owe  allegiance  from  their  birth,  n. 

220,  p.  225.  Claim  of  allegiance  to  the  Colonies  and  Great 
Britain  and  how  absolved,  n.  274.  p.  273. 

Alliance.  No  State  snail  enter  into  any  alliance 1 10 

This  is  a national  power,  n.  152.  The  same  under  the 
Confederation,  Art.  VI.  p.  11. 

Almighty  God.  “Looking  to  the  favor  and  guidance  of,”  n.  5, 
p.  53.  Remark  on  this,  n.  5. 

Ambassadors.  The  President  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate  appoint,  ambassa- 
dors, <fcc 2 2 

Ambassadors.  The  President  shall  receive  ambassadors  and  other 

public  ministers 2 3 

The  power  to  receive,  and  other  public  ministers,  carries 
along  with  it  the  power  to  receive  consul;,  n.  188. 

Ambassadors.  The  judicial  power  shall  extend  to  all  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls 3 2 

Defined,  n.  195.  By  what  suits  they  are  affected,  n.  202. 

Ambassadors.  In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  the  Supreme  Court  shall  have 

original  jurisdiction 3 2 

This  clause  explained,  n.  210.  No  State  under  the  Con- 
federation to  receive  without  the  consent  of  Congress, 

Art.  YI.  p.  11.  The  Congress  might  send  and  receive, 

Art.  IX.  p.  14. 

Amendments,  as  on  other  bills.  All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives ; but  the  Senate 
may  propose,  or  concur  with,  amendments,  as  on  other 
bills 1 7 

Amendments  to  the  Constitution.  The  Congress,  whenever  two- 
thirds  of  both  houses  shall  deem  it  necessary,  shall  pro- 
pose amendments  to  this  Constitution,  or,  on  the  applica- 
tion of  the  legislatures  of  two-thirds  of  the  several  States, 
shall  call  a convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid,  to  all  intents  and  purposes, 
as  part  of  this  Constitution,  when  ratified  by  the  legis- 
latures of  three-fourths  of  the  several  States,  or  by  con- 
ventions in  three-fourths  tnereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress; 
provided  that  no  amendment,  which  may  be  made  prior  to 
the  year  1808,  shall,  in  any  manner,  affect  the  first  and 
fourth  clauses  in  the  ninth  section  of  the  first  article  ; and 
'that  no  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5 

In  what  way  they  have  been  proposed  ; President’s  ap- 
proval not  necessary,  n.  236.  Date  and  history  of  the,  notes 
244,  274,  275.  Twelfth  amendment,  relative  to  election  of 
President,  pp.  46,  164.  Compared  with  original  Constitu- 
tion, notes  168,  1685.  For  amendments,  "see  pp.  43-50, 

164,  254-294,  notes  245-286. 

America.  The  Confederacy  shall  be  “The  United  States  of.” 

Art  I.  p.  9. 

America.  “ We,  the  People  of  the  United  States,”  &c.,  “ do  ordain 
and  establish  this  Constitution  for  the  United  States  of.” 

Preamble 

United  States  of,  defined,  n.  13.  Preamble  of  the 
Constitution  of  the  Confederate  States  of  America,  n.  5, 
p.  51. 

Anderson,  Joseph.  Presiding  officer  of  the  Senate,  n.  88,  p.  79. 

Annihilation.  Legislative  bodies  incapable  of,  Dec.  of  Ind.  p.  3. 

Appeal.  In  disputes  between  States,  Art.  IX.  p.  14. 

Appellate  jurisdiction.  The  Supreme  Court  shall  have,  both  as 

to  law  and  fact.  (See  Supreme  Court.) 3 2 

Defined;  can  only  be  exercised  under  acts  of  Congress, 
n.  211. 

Appoint.  Each  State  shall  appoint,  in  such  manner  as  the  legia- 


cl. 


1 


1 


2 


1 


2 


pp. 


31, 153 


35, 174 

£6, 1S8 


37, 194 
37, 204 


27,  90 


40,246 


22,51 


87,  204 


IXDEX 


503 


Art.  sec. 

latnre  thereof  may  direct,  a number  of  electors.  (See 

Electors.) 2 1 

All  the  States  now  appoint  electors  by  popular  election, 
n.  167.  President’s  power  to  appoint  defined,  n.  179,  pp.  175, 

176.  To  appoint  and  commission  are  not  the  same  thing, 
n.  179,  p.  176.  The  power  to  appoint  carries  the  power  to 
remove,  n.  134,  p.  178;  but  this  is  restricted  by  the  Civil 
Eights  Bill,  n.  184,  p.  179,  § 1,  2.  Duty  of  the  President 
to  appoint  commanders  of  military  districts  under  the 
reconstruction  laws,  n.  276,  p.  282,  § 2.  The  commanding 
general  of  each  district  shall  appoint  boards  of  registration, 
n.  276,  p.  282,  § 4. 

Appointed.  No  senator  or  representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  of  which  shall  have  been 

increased  during  such  time 1 6 

To  accept  such  office  vacates  his  seat,  n.  62,  63.  (See 
Office.) 

Appointed.  No  senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector 2 1 

Appointment  of  officers  of  the  militia  reserved  to  the  States  re- 
spectively  1 8 

This  power  discussed,  n.  135.  This  power  ceases  when 
the  citizens  are  conscripted,  n.  118,  p.  132. 

Appointment  of  electors  of  President  and  Vice-President  of  the 

United  States.  (See  Appoint.)  Amendments 12 

Appointments.  The  executives  of  States  may  make  temporary 
appointments  of  Senators  in  the  recess  of  the  legislatures 

thereof  to  fill  vacancies 1 3 

He  cannot  make  an  appointment  to  fill  a prospective 
vacancy,  n.  33. 

Appointments.  The  President  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint,  ambas- 
sadors, other  public  ministers,  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States 
whose  appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  law.  But  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers, 
as  they  think  proper,  in  the  President  alone,  in  the  courts 

of  law,  or  in  the  heads  of  departments.  2 2 

This  duty  is  imperative,  n.  179,  p.  175.  Without  a com- 
mission there  is  no  appointment.  Nomination  and  appoint- 
ment are  voluntary  acts,  n.  179,  p.  176.  President  may 
make  temporary,  during  suspension,  n.  184,  p.  179,  § 2. 

Appointments.  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions  (or  appointments),  which  shall 

expire  at  the  end  of  their  next  session 2 2 

The  subject  discussed  and  explained;  “vacancy”  de- 
fined, n.  185.  Such  appointments  continue  during  the 
session,  n.  186. 

Apportioned.  Representatives  and  direct  taxes  to  be  apportioned 

among  the  several  States  according  to  their  respective  ( 1 2 

numbers,  &c.  Amendments (14  2 

Defined,  n.  23.  (See  Representatives.) 

Apportionment.  Ratio  for,  through  each  decade,  notes  21,  280. 

Direct  taxes  to  be  laid  by  the  rule  of,  notes  22,  144.  The, 
of  Representatives  under  census  of  1860,  n.  24. 

Appraisement  and  stay  laws  unconstitutional,  n.  160. 

Apprentices  are  “ persons  held  to  service,”  n.  226. 

Appropriation  of  money  to  the  use  of  armies  shall  not  be  for  a 
longer  period  than  two  years.  May  be  for  a shorter  period, 
n.  126 1 8 

Appropriations.  No  money  shall  be  drawn  from  the  Treasury 
but  in  consequence  of  appropriations  made  by  law,  and  a 
•egular  statement  and  account  of  the  receipts  and  expendi- 


cl. 


2 


2 


2 

16 


2 


3 


12 


37 


pp. 

82,164 


27,90 


32.164 
29, 135 

46.164 
24,76 


35,174 


86,132 


26,67 

43,279 


29,130 


504 


INDEX, 


Art.  sec. 

tures  of  all  public  money  shall  be  published  from  time 

to  time 1 9 

“ Money 11  defined,  and  Confederate  Constitution  com- 
pared, n.  149,  p.  151.  Money  in  the  post-office  is  within 
the  restriction,  n.  149,  p.  152. 

Approval  of  President  makes  a bill  law,  n.  66. 

Approved.  Every  bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate,  shall,  before  it  become  a law, 
be  presented  to  the  President.  If  he  approve,  he  shall 

sign  it.  (See  Veto.) 1 T 

Every  bill  takes  effect  prospectively  from  the  time  it  is 
approved,  n.  66. 

Approved.  Any  bill  returned  by  the  President  with  objection, 
may  become  a law  if  approved  by  two-thirds  of  both 

houses  of  Congress 1 7 

The  veto  power  and  its  history,  n.  67.  Two-thirds  of  a 
quorum  is  sufficient,  n.  68. 

Approved.  Every  order,  resolution,  or  vote  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a question  of  adjournment),  shall 
be  presented  to  the  President  of  the  United  States  to  be 

approved  or  disapproved  by  him 1 7 

A joint  resolution  becomes  a law,  n.  70. 

Are.  Is  100  square  meters,  n.  102,  p.  119,  § 2. 

Arkansas.  Qualification  of  suffrage  in,  n.  17,  p.  60.  Three  rep- 
resentatives, by  census  of  1860,  n.  24,  p.  68.  Population  of, 
in  each  decade,  n.  24,  pp.  69,  70.  Did  not  Vote  in  the  presi- 
dential election  of  1864,  n.  167.  Assigned  to  the  eighth 
judicial  circuit,  n.  197.  Admitted  into  theUnion,  n.  280. 

Its  history  during  the  rebellion,  n.  285.  Ratified  the  18th 
amendment,  n.  274;  and  rejected  the  14th,  n.  275.  One 
of  the  non-reconstructed  States,  n.  276,  § 1.  Its  provisional 
government  defined,  n.  276,  p.  286.  Number  of  registered 
voters,  n.  278. 

Armed  troops.  For  quartering  large  bodies  of,  Dec.  of  Ind.  p.  4. 

Armies.  Congress  shall  have  power  to  raise  and  support 
armies,  but  no  appropriation  of  money  to  that  use  shall  be 

for  a longer  term  than  two  years 1 8 

This  power  did  not  exist  under  the  Confederation,  n.  122. 

The  rights  of  enlistment  and  conscription ; extent  of 
this  power,  n.  125.  Limitation  on  appropriations  for,  n. 

126. 

Arming.  Congress  shall  have  power  to  provide  for  organizing, 

arming, and  disciplining  the  militia 1 8 

The  extent  of  this  power  defined,  n.  184,  185. 

Arms.  The  right  of  the  people  to  keep  and  bear  arms  shall  not  be 

infringed.  Amendments 2 

This  is  a national  right ; does  not  give  the  right  to  carry 
concealed  weapons,  n.  249. 

Army.  Congress  shall  have  power  to  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces 1 8 

“Rules”  defined,  n.  129.  Defined;  and  rank  and  grade 
in,  n.  124. 

Army.  The  President  shall  be  commander-in-chief  of  the  army.  2 2 

Why  this  power  was  conferred.  Need  not  command  in 
person.  What  rules  he  may  establish,  n.  175. 

Army.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a manner  to  be  prescribed  by  law.  Amend- 
ments. ...  3 

This  relates  to  armies,  n.  250. 

Army  or  Navy.  No  person  shall  he  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  or 
indictment  of  a grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser- 
vice, in  time  of  war  or  public  danger.  Amendments 5 

The  extent  of  this  exception  defined  and  discussed,  notes 
118,  274. 


cL 

7 


2 


2 


3 


12 


16 


14 

1 


pp. 

31, 151 


27,  91 


27,91 


28,93 


29, 130 

29, 135 

43.256 

29, 183 
85, 171 

44.256 
44,258 


IJSTDEX. 


505 


Art.  soc.  cl. 

Abbbst.  Senators  and  representatives  shall,  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  sessions  of  their  re- 
spective houses,  and  in  going  to  and  returning  from  the 

same ...  1 6 1 

The  privilege  extends  to  all  civil  process,  n.  57.  The 
privilege  commences  from  the  election,  n.  59,  and  pro- 
tects the  member  who  loses  his  seat  on  contestation, 
n.  60.  All  persons  under  military  arrest,  to  be  tried  with- 
out unnecessary  delay,  and  how,  n.  276,  p.  282,  § 4.  When 
the  President  may  order  military  arrests,  n.  165. 

Arsenals,  &c.  Congress  shall  have  power  to  exercise  exclu- 
sive legislation  over  arsenals,  &c 1#  8 17 

Extent  of  jurisdiction  over,  defined  and  discussed.  The 
power  to  legislate  carries  the  power  to  make  it  effectual,  n. 

137. 

Articles  of  Confederation  and  perpetual  Union,  pp.  8,  21. 

The  preamble  to,  pp.  8,  9.  By  what  States,  p.  9.  Style 
of,  Art.  I.  p.  9. 

Each  State  retains  its  sovereignty,  &c.,  Art.  II.  p.  9.  A 
firm  league  of  friendship.  Art.  Ill  p.  10. 

For  common  defense,  the  security  of  their  liberties,  and 
general  welfare,  Art.  III.  p.  9.  Who  entitled  to  the  priv- 
ileges and  immunities  of  free  citizens,  Art.  IY.  p.  10.  Freo 
ingress  and  egress,  &c.,  Id.  Fugitives  from  justice  to  be 
delivered  up,  Id.  Full  faith  and  credit  to  acts,  records, 
and  judicial  proceedings,  of  the  courts  of  each  State, 

Id.  Delegates  to  Congress  to  be  appointed,  and  how, 

Id.  Not  less  than  two  nor  more  than  seven  members, 

Art.  Y.  p.  10.  Qualifications  of  delegates,  Jd.  Each  State  to 
maintain  its  delegates,  Id.  And  have  one  voteyld.  Free- 
dom of  speech,  of  debate,  and  from  arrests,  Id.  In- 
hibitions upon  the  States,  Art.  VI.  pp.  11, 12,  13.  Officers 
under  the  rank  of  colonel  to  be  appointed  by  the  legis- 
lature, Art.  YII.  All  charges  of  war  and  other  expenses, 
how  levied,  Art.  YIII.  p.  13.  The  powers  of  the  United 
States  in  Congress,  and  mode  of  proceeding.  Art.  IX.  pp. 

14-19.  To  determine,  peace  and  war,  ambassadors,  treaties, 
captures,  prizes,  marque  and  reprisal,  piracies,  felonies, 
and  appeals,  Art.  IX.  p.  14.  Controversies  between  States, 
and  the  mode  of  hearing  and  settlement,  Art.  IX.  pp.  14, 

15.  And  grants  by  different  States,  Id.  p.  16.  Coin, 
weights,  and  measures,  Indians,  post-offices,  and  postage, 

Id.  Officers  above  regimental,  Art.  IX.  pp.  16,  17.  “A 
Committee  of  the  States,11  other  committees,  and  civil  offi- 
cers. To  borrow  money,  emit  bills  of  credit,  &c.,  Art.  IX. 
p.  17.  The  navy  and  army,  Id.  Quotas,  how  arranged, 

Id.  p.  18.  Restrictions  upon  Congress,  without  the  assent 
of  nine  States,  Id.  What  upon  majority,  Id.  The  power 
and  limitations  on  adjournment;  yeas  and  nays,  and  pub- 
lication of  journal,  Art.  IX.  p.  19.  The  powers  of  the  Com- 
mittee of  the  States,  Art.  X.  p.  19.  Canada  and  other 
* States,  how  admitted,  Art.  X.  p.  19.  The  debts  of  the 
government,  how  guarantied,  Art.  XII.  p.  19.  The  States 
to  abide  the  determinations  of  Congress,  Art.  XIII.  p.  20. 

Union  perpetual,  Id.  Articles  inviolably  observed,  Id. 

Alterations,  how  made,  Id.  Ratification  of  the  articles, 
p.  20 ; Signers,  p.  21. 

Arts.  Congress  shall  have  power  to  promote  the  progress  of 
science  and  useful  arts,  by  securing,  for  limited  times,  to 
authors  and  inventors,  the  exclusive  right  to  their  re- 
spective writings  and  discoveries 1 8 8 

To  promote,  progress,  arts,  science,  and  authors,  defined, 
n.  107.  Art  distinguished  from  science,  n.  107,  p.  122.  In- 
ventors defined,  108.  Patents  liberally  construed,  108. 

The  laws  on  the  subject,  Id. 

Assemble.  Congress  shall  assemble  at  least  once  in  every  year, 


pp. 


26,88 


80  136 


29,121 


506 


INDEX. 


Art.  sec. 


on  the  first  Monday  in  December,  unless  they  shall  by  law 

appoint  a different  day . 1 4 

The  sessions  now  defined  by  law,  n.  43. 

Assemble.  Congress  shall  make  no  law  abridging  the  right  of 
the  people  peaceably  to  assemble  and  to  petition  the  gov- 
ernment for  a redress  of  grievances.  Amendments 1 

This  right  discussed,  n.  248. 

Atchison,  David  R.  Presiding  officer  of  Senate,  n.  38,  pp.  80,  81. 

Attainder.  No  bill  of  attainder  or  ex  post  facto  law  shall  be 

passed 1 9 

Bill  of,  defined  and  discussed,  n.  142,  pp.  146,  147. 

Attainder.  No  State  shall  pass  any  bill  of  attainder,  &c 1 10 

These  terms  relate  to  criminal  laws  only,  n.  156. 

Attainder  of  treasoh.  The  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood  or  forfeiture,  except  during 

the  life  of  the  person  attainted 3 3 

“Corruption  of  blood”  defined,  n.  217. 

Attendance.  Less  than  a quorum  of  either  house  may  compel 

the  attendance  of  absent  members  1 5 

Either  house  may  compel  attendance  of  witnesses,  n.  49. 

Attendance.  Members  of  Congress  privileged  from  arrest  during 

their  attendance  at  sessions,  &c.  (See  Arrest.) 1 6 

Authentication  of  records,  acts,  and  judicial  proceedings  of 

States 4 1 


The  act  of  Congress  prescribing  the  mode  of,  n.  219,  p. 

221.  Of  legislative  acts,  n.  219,  p.  218.  The  whole  sub- 
ject fully  discussed,  Id. 

Authority.  Paramount,  of  the  United  States  over  the  provisional 
governments  of  the  rebel  States,  n.  276,  p.  283.  § 6. 

Authors  may  secure  exclusive  rights  to  their  writings  fora  limited 

time * 1 8 

Defined,  n.  107.  No  exclusive  property  in  a published 
work  except  under  an  act  of  Congress,  Id. 


cl. 


3 

1 


2 

1 

1 


8 


Batl.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Amendments 8 

See  notes  12,  245,  275.  The  question  of  ability  to  be 
considered  ; the  fifty-dollar  fine  under  the  internal  revenue 
law  is  not  excessive  ; six  months  imprisonment  is  not  cruel, 
n.  267.  The  President  cannot  appoint  commissioners  of, 
n.  183,  p.  178. 

Baldwin,  Abraham.  Deputy  from  Georgia.  Signed  this  Constitu- 
tion. pp.  43,  252.  Presiding  officer  of  the  Senate,  n.  38, 
p.  79. 

Baldwin,  Henry.  One  of  the  supreme  judges,  n.  197,  p.  193. 

Ballot.  The  electors  shall  vote  by  ballot  for  President  and  Vice- 
President  of  the  United  States.  They  shall  name  in  their 
ballots  the  person  voted  for  as  President,  and,  in  distinct 
ballots,  the  person  voted  for  as  Vice-President.  Amend- 


ments   . . 12  1 

Ballot.  If  no  person  have  a majority  of  the  electoral  votes,  the 
House  of  Representatives  shall  choose,  immediately,  by 

ballot,  the  President.  Amendments 12  1 

Banister,  John,  of  Virginia.  Signed  Articles  of  Confederation,  p.  21. 

Bankrupt  defined  literally,  n.  91,  p.  113. 

Bankruptcies.  Congress  shall  have  power  to  establish  uniform 
laws  on  the  subject-of  bankruptcies  throughout  the  United 
States 1 8 4 


Defined,  n.  94,  95,  pp.  113,  114.  The  States  may  pass, 
nnder  restrictions,  n.  96. 

Bank  bills  are  not  bills  of  credit,  n.  154.  The  repeal  of  a bank  char- 
ter does  not  necessarily  impair  the  contract,  n.  157,  p.  156. 

Banks.  The  State  may  repeal  their  charters,  when,  n.  157,  p.  155. 

Banks,  national.  The  States  may  tax  the  interest  of  the  share- 
holders, n.  74  As  to  the  power  of  Congress  to  create, 
n.  80. 


pp. 

25,83 

43,  254 

31, 146 
31, 153 


38,  213 

25,84 

26,88 
38, 213 


29, 121 


45,267 


46.164 

46.165 

28, 112 


INDEX, 


507 


Art. 

Banks,  Nathaniel  P.  Speaker  of  the  House,  n.  26,  p.  73. 

Barbour,  James.  Presiding  officer  of  the  Senate,  n.  38,  p.  79. 

Barbour,  Philip  P.  Speaker  of  the  House  of  Representatives, 
n.  26.  One  of  the  supreme  judges,  n.  197, 193. 

Bartlett,  Josiaii,  of  N.  H.  Signed  the  Dec.  of  Ind.  p.  7;  and 
Articles  of  Confederation,  p.  21. 

Bassett,  Richard.  Deputy  from  Delaware.  Signed  this  Constitu- 
tion, pp.  42, 252. 

Bedford,  Jr.,  Gunning.  Deputy  from  Delaware.  Signed  this  Con 
stitution,  pp.  42,  252.  ■ 

Bell,  John.  Speaker  of  the  House,  n.  26,  p.  73. 

Benjamin,  Judah  P.  Expelled  from  the  Senate,  n.  50. 

Bill  of  attainder.  No  bill  of  attainder  or  ex  pout  facto  law  shall 

be  passed 1 

(See  Attainder , n.  142.)  Inflicts  legislative  punishment 
without  a legal  trial,  n.  142,  pp.  146,  147.  The  Missouri 
constitutional  test  oath  is  a bill  of  attainder,  Id. 

Bill.  Civil  Rights,  n.  6.  Constitutional;  discussed  and  explained, 
n.  274.  Tenure  of  office,  n.  184,  p.  179. 

Bill.  Every  bill  which  shall  have  passed  the  House  of  Represen- 
tatives and  the  Senate  shall,  before  it  become  a law,  be 
presented  to  the  President  of  the  United  States;  if  he 
approve,  he  shall  sign  it,  but  if  not,  he  shall  return  it,  with 
his  objections,  to  that  house  in  which  it  shall  have  origi- 
nated, who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such  recon- 
sideration, two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  house,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  .house,  it  shall  be- 
come a law.  But  in  all  such  cases,  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill  shall 

be  entered  on  the  journal  of  each  house,  respectively 1 

When  bills  take  effect,  n.  66.  Veto  or  negative  defined, 
n.  67.  History  of  the  subject,  Id. 

Bill.  If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a law,  in  like  manner  as 
if  he  had  signed  it,  unless  the  Congress,  by  their  adjourn- 
ment, prevent  its  return,  in  which  case  it  shall  not  be  a 

law 1 

There  must  be  ten  entire  days,  n.  69. 

Bill.  Every  order,  resolution,  or  vote,  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  neces- 
sary (except  on  a question  of  adjournment),  shall  be  pre- 
sented to  the  President  of  the  United  States;  and,  before 
the  same  shall  take  effect,  shall  be  approved  by  him,  or, 
being  disapproved  by  him,  shall  be  repassed  by  two- 
thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a 


bill 1 

Joint  and  concurrent  resolution  defined,  n.  70. 

Bills.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives,  but  the  Senate  may  propose  or  concur 

with  amendments,  as  on  other  bills  ...  1 

Copied,  n.  64.  Revenue  defined,  n.  65. 

Bill8  of  credit.  No  State  shall  emit  bills  of  credit 1 


Defined  and  discussed,  n.  154.  Proposed  in  the  clause  to 
borrow  money,  n.  82.  And  to  coin  money,  n.  97. 

Bills  of  credit.  Not  to  be  emitted  by  Congress,  under  the  Con- 
federation, without  the  consent  of  nine  States,  Art.  IX. 
p.  18.  What,  assumed  by  the  Confedera  tion,  Art.  XII.  p.  19. 

Bingham,  William.  Presiding  officer  of  the  Senate,  n.  38,  p.  78. 

Blair,  John.  Deputy  from  Virginia.  Signed  this  Constitution, 
pp.  42,  252. 

Blessings  of  liberty,  to  ourselves  and  posterity.  Preamble 

Defined,  n.  12. 


sec.  cl. 


9 8 


7 2 


7 2 


7 3 


7 1 

10  1 


PP. 


31 


27,91 

r 


27,91 


28, 93 


27, 90 
31, 153 


22, 51 


508 


INDEX, 


Art.  sec. 

Blood.  No  attainder  of  treason  shall  work  corruption  of  blood  or 

forfeiture,  except  during  the  life  of  the  person  attainted  ..  3 3 

Corruption  of  blood  defined,  n.  217. 

Blount,  William.  Deputy  from  North  Carolina.  Signed  this  Con- 
stitution, pp.  42,  252.  Expelled  from  the  Senate,  n.  42. 

Tried  on  impeachment,  n.  39.  His  offense,  n.  194.  Dis- 
missed for  want  of  jurisdiction,  n.  194. 

Bond  given  to  “ fill  up  a vacancy  ” does  not  cover  matters  after 
nomination  and  confirmation,  n.  186. 

Borrow  money.  Congress  shall  have  power  to  borrow  money  on 

the  credit  of  the  United  States 1 8 

How  it  originally  read.  n.  83.  Authorizes  bills  of  credit, 
n.  84.  And  to  issue  treasury  notes  and  to  make  them 
legal  tenders,  n.  84.  That  subject  discussed,  Id.  The 
sums  borrowed  and  owing,  n.  72.  The  treasury  notes  an 
equivalent  of  coin,  n.  84,  p.  105.  Money  defined,  n.  98. 

(See  Money , notes  97-100.) 

Bound.  Persons  bound  to  service  for  a term  of  years,  included  in 

representative  numbers 1 2 

See  full  notes  upon,  notes  226-228. 

Boyd,  Lynn.  Speaker  of  the  House,  n.  26,  p.  73. 

Bradford,  William.  Presiding  officer  of  the  Senate,  p.  78. 

Bradley,  Stephen  R.  Presiding  officer  of  the  Senate,  n.  38, 
p.  79. 

Braxton,  Carter,  of  Virginia.  Signed  the  Dec.  of  Ind.  p.  8. 

Breach  of  the  peace.  For  a breach  of  the  peace,  a senator  or 

representative  may  be  arrested 1 6 

For  any  indictable  offense,  n.  56. 

Brearley,  David.  Deputy  from  New  Jersey.  Signed  this  Consti- 
tution, pp.  42,  252. 

Breckinridge,  JonN  C.  Vice-President,  n.  37,  p.  78. 

Bribery.  All  civil  officers  shall  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  bribery,  &c 2 4 

Bribery  defined,  n.  193. 

Bridges.  A charter  for  is  a contract,  n.  154,  p.  156.  A railroad 
bridge  is  not  a bridge  within  the  statutes  of  1790,  Id. 

The  power  of  Congress  to  build,  is  not  found  in  the 
Constitution.  It  exists  in  the  States,  n.  89.  But  Congress 
may  regulate  those  over  navigable  waters,  n.  89,  p.  108. 

Brigadier-General.  Ten  in  the  army,  n.  124.  Not  less  than  a 
Brigadier  to  be  assigned  to  command  the  Districts  in  the 
rebel  States,  n.  276,  p.  282,  § 2. 

Bright,  Jesse  D.  Presiding  officer  of  the  Senate,  n.  38,  p.  81.  Ex- 
pelled from  the  Senate,  n.  50. 

Broom,  Jacob.  Deputy  from  Delaware.  Signed  this  Constitution, 
pp.  42,  252. 

Brown,  Albert  G.  Expelled  from  the  Senate,  n.  50. 

Brown,  John.  Presiding  officer  of  the  Senate,  n.  33,  p.  79. 

Buchanan,  James.  President,  n.  166. 

Buildings.  Congress  shall  have  power  to  exercise  exclusive 
legislation  over  needful  buildings  in  places  purchased  by 

the  consent  of  the  legislatures  of  the  States 1 8 

This  includes  the  power  of  taxation,  n.  36.  And  exclusive 
jurisdiction.  Id.  But  the  title  must  be  acquired  with  the 
consent  of  the  State,  n.  137. 

Burr,  Aaron.  Vice-President,  n.  37. 

Business  A majority  of  each  house  shall  constitute  a quorum  to 

do  business 1 5 

Butler,  Pierce.  Deputy  from  South  Carolina.  Signed  this  Con- 
stitution, pp.  42,  252. 


2 


3 


1 


1 


* 


1 


Caliioun,  John  C.  Vice-President,  n.  37. 

California.  Qualifications  of  electors,  n.  17.  Three  representa- 
tives, by  census  of  1860,  n.  24,  p.  68  ; population  of,  through 
each  decade,  pp.  69-71.  Assigned  to  ninth  judicial  cir- 
cuit, n.  197.  Effect  of  purchase  upon  citizenship,  n.  220. 
Admitted  into  the  Union,  n.  280.  Ratified  the  18tnameud- 
• merit,  n.  274 ; and  failure  to  act  on  the  14th,  n.  275. 


I.  pp. 

38, 218 


28, 103 


23, 67 


26,88 


36, 185 


108 


M 136 


25,88 


INDEX. 


509 


Art.  sec. 

Campbell,  John  A.  One  of  the  Judges  of  tho  Supreme  Court, 
n.  197. 

Canada  might  be  admitted  into  the  Union  of  the  Confederation, 

Art.  of  Confederation,  xi.  p.  19. 

Candidates  for  the  Presidency,  spirit  of  the  Constitution 
changed  as  to,  n.  236. 

Capacity  of  measures  for  liquids,  n.  102,  p.  118,  § 2. 

Capital  crime.  No  person  shall  be  held  to  answer  for  a capital 
or  otherwise  infamous  crime,  unless  on  a presentment  or 
Indictment  of  a grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser- 
vice in  time  of  war  or  public  danger.  Amendments 5 

“ Person 11  excluded  slaves.  Presentment  or  indictment 
applies  to  all  offenses  against  the  United  States.  Pre- 
sentment, indictment,  and  grand  jury,  defined,  n.  253. 

The  exception  defined  and  discussed,  n.  254.  Twice  in 
jeopardy  defined  and  discussed,  n.  255.  Witness  against 
himself  would  be  contrary  to  justice,  n.  257.  “Without 
due  process  of  law,”  fully  defined  and  discussed,  n.  257. 

Piracy  is  a capital  offense,  n.  111.  Is  in  restraint  of  legis- 
lative power,  Id.  n.  257. 

Capitation  tax.  No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein- 


before directed  to  be  taken 1 9 

Capitation  defined,  n.  144.  See  also  n.  22.  Direct  taxes 
must  be  by  the  rule  of  apportionment,  notes  22, 144.  What 
are  direct  taxes,  Id. 

Capitation  tax.  No  amendment  shall  be  made  prior  to  1808  to 

affect  the  preceding  clause 5 

Captain.  A rank  in  the  army,  n.  124.  In  the  navy,  n.  128. 

Captures.  Congress  shall  have  power  to  declare  war,  to  grant 
letters  of  marque  and  reprisal,  and  make  rules  concerning 
captures  on  land  and  water 1 8 

Captures  on  land  and  water  under  the  Confederation,  Art.  IX. 
p.  14.  See  notes  117-121. 

Care.  The  President  shall  take  care  that  the  laws  be  faithfully 

executed 2 3 

The  reason  of  this  power  explained,  n.  189. 

Carroll,  Charles,  of  Maryland.  Signed  the  Dec.  of  Ind.  p.  7 ; 
and  the  Articles  of  Confederation,  p.21. 


Carroll,  Daniel.  Deputy  from  Maryland.  Signed  Articles  of 
Confederation,  p.  21 ; and  this  Constitution,  pp.  42,  252. 

Catholic  Church.  Reduced  from  the  established  church  in 
Texas,  n.  245. 

Catron,  John.  One  of  the  Associate  Justices  of  the  Supreme 
Court  of  the  United  States,  n.  197,  p.  193. 

Cases  to  which  the  judicial  power  shall  extend.  (See  Judicial 

Power.) 3 2 

When  a case  arises,  notes  199,  201.  Defined,  Id.  Cases  in 
equity,  n.  200.  Affecting  ambassadors,  202.  In  admiralty 
(see  Admiralty),  n.  202.  Where  the  United  States  is  a 
party,  204.  Between  States,  205.  Between  a State  and 
citizens  of  another  State  205a.  Between  citizens  of  dif- 
ferent States,  20,6.  Between  land  grants  of  different 
States,  207.  Between  a State  and  citizens,  208.  Between 
a State  and  aliens,  or  between  aliens,  &c.,  209.  The  court 
has  not  jurisdiction  of  every  case,  210. 

Cause  No  warrant  shall  issue  but  upon  probable  cause.  Amend- 
ments. . 4 

Must  be  by  authority  of  law,  n.  251.  Warrant  defined, 
n.  252. 

Census  to  be  taken  within  three  years  after  first  meeting  of  Con- 
gress, and  every  ten  years  thereafter,  in  such  manner  as 

they  shall  by  law  direct 1 2 

Numbers  under  each,  n.  24,  pp.  68-71.  Ratio  each  year, 
n.  21.  Number  of  representatives  under,  in  1860,  n.  24, 
p.  68.  Defined  ; has  reference  to  numbers,  n.  145. 

Census.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 


cL 


4 


11 


1 


pp. 


44,258 


31,149 

40, 246 

29, 127 
14 

36, 185 


87,194 


44,  257 
23,  67 


510 


INDEX, 


proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken 

Census.  No  amendment  shall  be  made  prior  to  1S08  to  affect  the 
preceding  clause  

Centare.  One  square  meter,  n.102,  p.  117,  § 2. 

Centigram.  A measure  of  weight,  n.  102,  p.  118,  § 2. 

Centiliter.  A measure  of  capacity,  n.  102,  p.  118,  § 2. 

Centimeter.  A measure  of  length,  n.  102,  p.  117,  §2. 

Cession.  On  the  cession  by  particular  States  of  a district  (not 
exceeding  ten  miles  square),  and  the  acceptance  of  Con- 
gress, it  may  become  the  seat  of  government  of  the 

United  States 

The  District  of  Columbia  was  ceded,  n.  136.  The  in- 
habitants are  citizens,  and  taxable,  notes  136,  137. 

Charge  of  treason.  A person  charged  in  any  State  with  treason, 
&c.,  who  may  flee  from  justice,  to  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  the  crime. . . . 

“Person”  and  “flee”  defined,  n.  223.  The  executive 
cannot  go  behind  the  demand,  n.  223.  He  cannot  be 
coerced  by  the  Supreme  Court,  Id.  The  requisites  of  the 
demand,  Id.  On  what  evidence  shall  be  delivered  up.  Id. 

Charters.  For  taking  away  our,  and  abolishing  our  laws.  Dec. 
of  Ind.  p.  4. 

Chase,  Salmon  P.  Chief-Justice  of  the  Supreme  Court,  n.  197. 

Chase,  Samuel,  of  Maryland.  Signed  the  Dec.  of  Ind.  p.  7.  One 
of  the  Associate  Justices,  n.  197,  p.  193.  Impeached;  oath 
on  trial  of,  n.  39.  History  of  his  trial,  n.  194,  p.  188. 

Cheves,  Langdon.  Speaker  of  House  of  Eepresentatives,  n.  26, 
p.  73. 

Chief-Justice  shall  preside  when  the  President  of  the  United 

States  is  tried  on  an  impeachment  by  the  Senate,  the 

(See  n.  39.) 

Chief-Justices.  List  and  ages  of,  of  the  Supreme  Court,  n.  197. 

Choosing  senators  defined,  n.  41. 

Chosen.  (See  Elected , &c.,  n.  168.)  Amendments 

Church.  Congress  shall  make  no  law  respecting  the  establishment 

of  religion.  Amendment 

This  cut  down  any  established  church,  n.  245. 

Chuse.  (See  Elect , notes  41, 168.) 

Circuits  of  the  United  States  Courts  defined  and  judges  allotted, 
n.  197,  pp.  191, 192. 

Citizen  of  United  States.  No  person  shall  be  a senator  in  Con- 
gress who  has  not  been  nine  years  a citizen  of  the  United 

States 

Shields  rejected  for  want  of  nine  years1  naturalization, 
n.  35.  (See  n.  46.) 

Citizen.  If  not  in  military  service,  guarantied  the  right  of  trial 
by  jury,  n.  260. 

Citizen.  No  person  except  a natural  born  citizen,  or  a citizen  of 
the  United  States  at  the  time  of  the  adoption  of  the  Con- 
stitution, shall  be  eligible  to  the  office  of  President 

Not  made  by  law,  natural  members  of  the  body  politic, 
n.  169.  The  Constitution  does  not  make  the  citizens — it 
is  made  by  them,  n.  169.  Ora  citizen  of  the  United  States 
discussed  and  defined,  n.  170.  Citizen  defined,  n.  274.  Citi- 
zen made  by  naturalization,  n.  93. 

Citizens.  The  judicial  power  shall  extend  to  controversies  be- 
tween a State  and  citizens  of  another  State;  between 
citizens  of  different  States;  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States;  and 
between  a State,  or  the  citizens  thereof,  and  foreign  States, 

citizens,  or  subjects 

(See  n.  274.)  A citizen  cannot  sue  a State,  n.  205a.  They 
must  be  citizens  of  the  United  States,  n.  206.  The  situa- 
tion rather  than  character  gives  the  jurisdiction,  Id.  Does 
not  embrace  citizens  of  Territories  and  District  of  Colum- 
bia. It  is  enough  that  the  grants  were  made  by  different 
States,  Id.  The  jurisdiction  depends  upon  the  character 


Art.  sec.  cl. 
19  4 

5 


/ 

1 8 17 

4 2 2 


13  6 

12  1 

1 

13  3 


2 15 


3 2 1 


pp. 

31,149 
40,  246 


30,136 


38, 229 


25,81 

46,164 
43,  254 

24,77 

34,167 


87, 194 


* 


INDEX. 


Art.  sec.  cl. 

of  the  real  parties,  n.  208.  Indian  tribes  not  a State,  Id. 

The  annexation  of  Texas  made  citizens  of  all.  n.209. 

Citizens.  The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immumties  of  citizens  in  the  several  States 4 2 1 

This  is  copied  from  the  fourth  Article  of  the  Confedera- 
tion, p.  10.  There  is  no  authoritative  definition  of  citizen, 
notes  220,  274.  Those  who  became  such  by  the  devolution, 
n.  220,  § (n  274,  p.  278,)  1 ; the  descendants  of  such,  Id. 

§2;  of  Louisiana  Territory,  Id.§  3;  of  Florida,  Id.  § 4; 
of  Texas,  Id.  § 5;  of  California,  Id.  § 6;  of  Arizona,  Id. 

§7;  naturalized  by  special  acts,  Id.  § 8;  the  late  slaves, 

Id.  § 9,  n.  274;  the  naturalized,  Id.  § 10;  certain  Indians, 

Id.  § 11 ; corporations,  Id.  § 12  ; natural  born  and  natural- 
ized, Id.  § 12,  and  n.  74.  Privileges  and  immunities  de- 
fined, n.  221.  The  power  of  the  States  over  the  sub- 
ject, Id.  The  rights  are  fundamental,  Id.  p.  226. 

The  question  of  those  of  African  descent  discussed,  n. 

221,  pp.  227,  228,  and  n.  274.  The  object  of  the  guaranty,  n. 

222.  The  citizen  does  not  carry  the  law  of  his  State  into 
another  State,  n.  222. 

Citizens.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments 11 

The  reason  of  this  amendment,  n.  270.  Its  effect  was  to 
dismiss  all  pending  suits,  Id. 

Citizens.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  naake  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor  deny 


to  any  person  within  its  jurisdiction  the  equal  protection 

of  the  laws.  Amendments ./  14  1 

Defined,  n.  274.  When  the  right  to  vote  at  any  election, 

&c.,  is  denied  to  any  of  the.  (See  Representatives .) 
Amendments 14  2 


Citizens.  Used  synonymously  with  “ people,”  n.  6,  p.  54.  Negroes 
not  included,  Id.  p.  55 ; but,  they  are  by  the  Civil  Rights 
Bill,  notes  6,  274.  None  but,  allowed  to  vote  in  the  Confeder- 
ate States,  n.  16,  p.  59.  To  be,  a necessary  qualification  in 
many  States  of  the  Union,  n.  16,  pp.  59-64.  The  eleven 
different  classifications  of,  n.  220. 

Citizens.  Commerce  with  foreign  nations  means  commerce  be- 
tween our  citizens  ami  foreign  citizens,  n.  87. 

Citizenship  does  not  give  the  right  to  vote,  nor  the  want  of  it 
invalidate  it ; does  not  depend  upon  the  legal  capacity  to 
hold  office ; political  rights  in  contradistinction  to  poli- 
tical powers,  n.  18.  A necessary  qualification  for  a repre- 
sentative, n.  19.  Senator,  n.  35.  President,  n.  169.  By 
naturalization ; extent  of,  notes  93,  274.  The  effect  of 
emancipation  and  the  Civil  Rights  Bill  upon,  n.  274. 

Civil  office.  (See  Office.) 

Civil  officers.  All  civil  officers  of  the  United  States  shall  be 
removed  from  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors   2 4 

Who  are  civil  officers;  strictly  confined  to  offices  of  the 
United  States — not  members  of  Congress,  n.  191.  Treason 
and  bribery  defined,  n.  192.  High  crimes  and  misdemean- 
ors defined,  notes  193,  194.  The  impeachments  discussed, 
n.  194.  For  what  it  may  and  may  not  be  had.  Impeach- 
ment of  the  President,  n.  194.  See  Tenure  of  Office,  n.  1S4. 

Claim.  Fugitive  slaves  shall  be  delivered  up  on  claim  of  the 

party  to  whom  they  belong,  &c 4 2 8 

(See  Fugitives  and  Slaves.) 


511 

pp. 

88, 222 


46,269 

48,  279 
48,279 


36, 185 
89,282 


512 


INDEX, 


Claims.  The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  Slates;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  par- 
ticular State 

This  subject  fully  discussed  (see  Territories),  notes 
231,  232.  The  claims  of  Georgia  and  North  Carolina  were 
referred  to,  n.  222.  * 

Classes.  The  senators  shall  be  divided  as  equally  as  may  be  into 

three  classes.  (See  ^Senators.) 

The  classification,  where  found,  and  its  objects,  n.  34 

Clark,  Abraham,  of  New  Jersey.  Signed  the  Dec.  of  Ind.  p.  7. 

Clark.  Daniel.  Presiding  officer  of  the  Senate,  n.  38,  p.  81. 

Clay,  Henry.  Speaker  of  the  House  six  years,  n.  26,  p.  73. 

Clear.  Vessels  bound  to  or  from  one  State  shall  not  be  obliged 

to  enter,  clear,  or  pay  duties  in  another 

This  clause  has  reference  to  the  coasting  trade,  n.  148... 

Clingan,  William,  of  Pennsylvania.  Signed  Articles  of  Confed- 
eration. p.  21. 

Clinton,  George.  Vice-President,  n.  37. 

Clymer,  George.  Deputy  from  Pennsylvania.  Signed  the  Dec.  of 
Ind.  p.  7 ; and  this  Constitution,  pp.  42,  252. 

Cobb,  Howell.  Speaker  of  House  of  Representatives,  n.  26.  p.  73. 

Coin  money.  Congress  shall  have  power  to  coin  money,  regulate 

the  value  thereof,  and  of  foreign  coin 

Coin  defined,  n.  97.  Money  defined,  n.  98.  Substitute 
for,  n.  98.  Counterfeiting,  n.  98.  As  a legal  tender  dis- 
cussed, notes,  83,  97,  98,  99,  100, 155. 

Coin  money.  No  State  shall  coin  money 

For  remarks  on  this  see  n.  152,  and  marginal  figures 
there. 

Coin.  (See  Counterfeiting .) 

Coin.  No  State  shall  make  any  thing  but  gold  and  silver  coin  a 

tender  in  payment  of  debts 

But  Congress  may,  notes  83,  84,  97-100,  155. 

Colfax,  Schuyler.  Speaker  of  the  House,  n.  26,  p.  73. 

Collins,  John,  of  Rhode  Island.  Signed  Articles  of  Confedera- 
tion, p.  21. 

Collect  duties.  Congress  shall  have  power  to  lay  and  collect 

duties,  taxes,  imposts,  and  excises 

The  full  extent  of  this  power  considered  (See  Congress , 
notes,  72  to  81 J,  notes  22,  144. 

Collector  cannot  hold  the  office  of  an  inspector,  n.  63. 

Commander-in-Chief.  The  President  shall  be  commander-in- 
chief of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States,  when  called  into  the 

actual  service  of  the  United  States 

Why  this  power  given  to  one  head ; need  not  command 
in  person,  n.  175.  When  his  power  over  the  militia  com- 
mences, n.  175. 

Commerce.  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with 

the  Indian  tribes 

To  regulate  and  commerce  defined,  n.  86.  It  in- 
cludes navigation,  notes  86,  87  ; and  certain  railroads,  n. 
274.  “With  foreign  nations11  defined,  n.  87,  pp.  105,  106. 
State  license  and  other  laws  unconstitutional,  notes  88,  89, 
144.  What  navigable  waters  are  public  property,  n.  89. 
And  railroads,  n.  274.  The  concurrent  powers  of  the  States, 
n.  89,  p.  108,  n.  144.  The  power  among  the  States,  n.  90. 
And  with  the  Indian  tribes,  defined  and  discussed,  n.  91. 
Not  subject  to  State  taxation,  n.  91,  p.  110.  The  Indian 
relations  defined,  n.  92. 

Commerce.  No  preference  shall  be  given  by  any  regulations  of 
commerce  or  revenue  to  the  ports  of  ode  State  over 
those  of  another;  nor  shall  vessels,  bound  to  or  from  one 
State,  be  obliged  to  enter,  clear,  or  pay  duties  in  another.. 


Art.  sec. 


4 3 

1 3 


1 9 


1 8 

#1  10 

1 8 
1 10 


1 8 


2 2 


1 8 


1 9 


cL 


2 


2 


6 


5 


1 

6 

1 


1 


1 


3 


* pp. 


39, 233 


24, 76 


31, 150 


29, 114 

31,153 

29, 118 
31, 153 

28, 94 


35, 271 


28,105 


81,150 


rNDEX 


513 


Art.  sec. 

Preference  defined,  n.  147. 9 Inspection  laws  retained,  Id. 

Vessels  bound  defined,  148. 

Commerce,  inter-State.  Was  intended  to  be  as  free  as  possible, 
n.  162. 

Commissions.  The  President  shall  have  power  to  fill  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions,  which  shall  expire  at  the  end  of 

their  next  session .. 2 2 

How  vacancies  may  happen,  n.  185.  If  they  occur  during 
the  recess,  Id.  If  the  Senate  do  not  ratify,  the  office 
remains  in  abeyance,  n.  184,  § 3. 

Commissions.  The  President  shall  commission  all  the  officers  of 

the  United  States 2 3 

When  those  rejected  appointments  expire,  n.  186. 

Do  not  embrace  matters  after  nomination,  n.  196. 

The  President  shall  commission  all  officers ; this  is  not 
appointing  them,  n.  190. 

Committee  of  the  States.  Congress  might  appoint  a;  their  pow- 
ers defined.  Confederation,  Art.  IX 

Common  defense,  &c.  The  Constitution  established  to  provide  for 
the  common  defense,  &c.  Preamble 

Common  defense.  Congress  shall  have  power  to  provide  for  the 

common  defense . . ..  1 8 

Preamble  defined,  n.  10.  Omitted  from  the  Confederate 
preamble,  n.  5.  Detained  among  powers,  Id.  The  power 
discussed,  n.  79. 

Common  law.  In  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ; and  no  fact  tried  by  a jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

Amendments 7 

Common  law  is  used  in  contradistinction  to  equity  and 
admiralty,  notes  200,  263.  Compared  with  other  clauses, 
defined,  n.  263.  Relates  to  proceedings  in  the  federal  courts 
only;  the  prohibition  defined  and  discussed,  n.  263, 
Christianity  is  not  a part  of  the,  n.  245. 

Compact.  No  State  shall,  without  the  consent  of  Congress,  enter 
into  any  agreement  or  compact  with  another  State  or  a 
foreign  power 1 10 

Compact.  The  Constitution  created  a government,  not  a mere 
compact,  Pref.  p.  viii.  notes  2,  4. 

Compact  or  agreement  defined  and  discussed,  n.  164. 

Compel  the  attendance  of  absent  members.  A smaller  number 
than  a quorum  of  each  house  may  compel  the  attendance 
of  absent  members,  in  such  manner  and  under  such  pen- 
alties as  each  house  may  provide . 5 

Compensation.  The  senators  and  representatives  shall  receive 
a compensation  for  their  services,  to  be  ascertained  by  law, 

and  paid  out  of  the  Treasury  of'  the  United  States 1 6 

Of  members,  n.  53.  How  fixed,  n.  54. 

Compensation  of  the  President  of  the  United  States.  The  Presi- 
dent shall,  at  stated  times,  receive  for  his  services  a com- 
pensation which  shall  be  neither  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  period  any  other 

emolument  from  the  United  States,  or  any  of  them 2 1 

Fixed  at  $25,000  per  annum,  n.  173. 

Compensation.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a compen- 
sation which  shall  not  be  diminished  during  their  contin- 
uance in  office 3 1 

Fixed  by  statute,  n.  198. 

Compensation.  Nor  shall  private  property  be  taken  for  public 

use  without  just.compensation.  "Amendments 5 

What  is  just  compensation,  and  how  it  must  be  made, 
defined  and  discussed,  n.  259.  Public  use  defined,  n.  258. 


cl. 


1 


1 


3 


1 

1 


7 


pp. 


36, 182 


36, 183 


17, 18 
22,51 
28,94 


45,  266 


32,161 


25,84 

26,88 


35, 170 

36, 189 
44,258 


514 


INDEX, 


Art.  sec. 

Compulsory  process.  In  all  criminal  prosecutions  the  accused  to 
have  compulsory  process  for  obtaining  witnesses  in  his 

favor.  Amendments 6 

Compulsory  process  defined,  n.  264.  Why  the  assistance 
of  counsel,  n.  265. 

Concur.  The  Senate  may  propose  and  concur  in  amendments  to 

revenue  bills,  &c. 1 7 

The  reason,  n.  64.  Revenue  defined,  n.  65. 

Concurrence.  No  person  shall  be  convicted  on  an  impeachment 
without  the  concurrence  of  two-thirds  of  the  senators 

present 1 3 

(See  n.  39.) 

Concurrence.  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  two  houses  may  be  necessary,  shall  be 

presented  to  the  President,  except,  &c 1 7 

Explained ; why  adjournment  is  excepted,  n.  70. 

Confederacy.  “The  style  of  this  shall  be  ‘The  United  States 
of  America.’  ” Was  a firm  league  of  friendship.  (See 
Articles  of  Confederation.  Art.  I.  p.  9.) 

Confederation.  Articles  of,  agreed  to,  notes  8,  9. 

Confederation.  No  State  shall  enter  into  any  confederation....  1 10 

Because  it  is  a national  power,  n.  152.  (See  Agree- 
ment.) 

Confederation.  All  debts  contracted  or  engagements  entered 
into  before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution  as 

under  the  Confederation . . » 6 

This  was  but  asserting  a general  principle,  n.  237. 

Confederate  States.  Extracts  from  Constitution  of,  n.  5,  p.  38 ; 
n.  70,  pp.  101,  202 ; n.  149,  p.  151.  Was  not  a de facto  gov- 
ernment, n.  215. 

Confession  in  open  court.  No  person  shall  be  convicted  of  trea- 
son unless  on  the  testimony  of  two  witnesses  to  the  same 

• overt  act,  or  on  confession  in  open  court 3 3 

(See  Treason , notes  215,  216.) 

Confiscations  under  foreign  treaties  are  political  questions,  n. 

199,  p.  195.  Under  the  laws  of  the  Confederate  States, 
void,  n.  213. 

Confronted.  In  all  criminal  prosecutions  the  accused  shall  enjoy 


the  right  to  be  confronted  with  the  witnesses  against  him. 

Amendments 6 

The  accused  defined,  n.  260.  The  reason  of  witnesses, 

261. 

Congress,  United  States.  All  legislative  powers  herein  granted 

shall  be  vested  in  Congress 1 1 

The  legislative  power  defined,  n.  14.  Distinguished 
from  the  executive  and  judicial,  notes  165,  199,  274.  Con- 
gress defined  and  discussed,  n.  15. 

Congress,  United  States.  Shall  consist  of  a Senate  and  House  of 

Representatives 1 1 

Congress,  members  of.  (See  Senators , Representatives.)  Notes 
16-46. 

Congress  shall  by  law  direct  the  manner  in  which  the  census  or 

enumeration  of  the  people  shall  be  made 1 2 

For  the  numbers,  see  n.  24.  Census  defined,  n.  144. 

Congress.  The  first  Congress  to  consist  of  65  members,  from  the 
several  States  as  mentioned  herein.  (See  Representa- 
tives.)  1 2 


For  the  numbers  under  the  census  of  1860,  see  n.  24, 
pp.  68,  69. 

Congress.  The  time,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  stall  be  prescribed  in  each 
State  by  the  legislature  thereof ; but  the  Congress  may, 
at  any  time,  by  law,  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 1 4 

How  far  this  power  has  been  exercised,  n.  41.  It  cannot 
give  the  right  to  say  who  shall  vote,  n.  41. 

Congress  shall  assemble  at  least  once  in  every  year,  and  such 


cl. 


1 


6 


3 


1 


1 


1 


8 

8 


1 


VP 

44,268 
27,90 
25, 81 
28,  93 

31,153 

40,  247 

8S,  211 

44,263 

22,58 

22,58 
23,67 
23, 67 

25,88 


INDEX. 


515 


Art.  sec. 

meeting  shall  be  on  the  first  Monday  in  December,  unless 

they  shall  by  law  appoint  a different  day 1 4 

The  sessions  defined  by  the  law  of  1867,  n.  43. 

Congress  of  the  United  States: — 

Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a majority  of  each 
shall  constitute  a quorum  to  do  business;  but  a smaller 
number  may  adjourn  from  day  to  day,  and  may  be  author- 
ized to  compel  the  attendance  of  absent  members,  in  such 
manner  and  under  such  penalties  as  each  house  may 

provide 1 5 

The  elections,  returns,  and  qualifications  defined,  notes 
44,  45,  46,  with  reference  to  notes  19,  35,  and  41.  The  dif- 
ferences between  the  President  and  Congress  presented, 
n.  46.  Superadded  qualifications,  n.  46,  pp.  85,  86. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concur- 
rence of  two-thirds,  expel  a member 1 5 

The  rules,  where  found,  n.  47.  This  gives  the  power  to 
punish  members  and  others  for  contempts,  n.  48.  Sam 
Houston’s  case,  n.  48.  Expulsion  defined,  n.  49.  Expul- 
sion for  rebellion,  n.  50. 

Each  house  shall  keep  a journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as 
may,  in  their  judgment,  require  secrecy;  and  the  yeas  and 
nays  of  the  members  of  either  house,  on  any  question, 
shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 

on  the  journal 1 5 

The  object  of  the  journal,  and  yeas  and  nays,  n.  51. 

Neither  house,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses 

shall  be  sitting 1 5 

The  reasons" of  this  rule,  n.  52. 

All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives ; but  the  Senate  may  propose  or  concur 

with  amendments,  as  on  other  bills  1 7 

The  present  compensation  and  reason,  n.  53.  Why 
ascertained  by  law,  n.  54.  Privilege  defined,  n.  55.  For 
what  offenses  not  privileged,  n.  56.  To  whom  and  how  long 
the  privilege  from  arrest  extends,  n.  57.  The  consequences 
of  arrest,  n.  58.  When  the  privilege  commences,  n.  59. 
Contestants  entitled  to  it,  n.  60.  Freedom  of  debate,  n.  61. 

To  what  confined,  n.  61,  p.  90. 

Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  become  a law,  be  pre- 
sented to  the  President  of  the  United  States ; if  he  approve, 
he  shall  sign  it ; but  if  n-^t,  he  shall  return  it,  with  his 
objections,  to  that  house  in  which  it  shall  have  originated, 
who  shall  enter  the  objections  at  large  on  their  journal, 

and  proceed  to  reconsider  it 1 7 

Bills  take  effect  from  approval,  n.  66.  The  negative  is 
the  veto  power,  n.  67,  p.  92.  Veto  defined;  its  objects  and 
history,  n.  67,  pp.  92,  93.  President  Johnson’s  use  of 
it,  Id.* 

If,  after  such  reconsideration,  two-thirds  of  that  house  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  bouse,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two-thirds  of  that 

house,  it  shall  become  a law 1 7 

Two-thirds  of  a quorum  sufficient,  n.  68. 

But,  in  all  such  cases,  the  votes  of  both  houses  shall  be  deter- 
mined by  yeas  and  nays,  and  the  names  of  the  persons 
voting  for  and  against  the  bill,  shall  be  entered  on  the 
journal  of  each  house,  respectively 1 7 

If  any  bill  shall  not  be  returned  by  the  President  "within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a law,  in  like  manner  as  if  he 


cl. 

2 


1 


3 


1 


2 


2 


pp. 

25.83 

25.84 
26,86 

26. 87 

26.88 
27,90 

28,93 

28, 93 
28,93 


516 


INDEX. 


Art.  sec. 

had  signed  it,  unless  the  Congress,  by  their  adjournment,  . 

prevent  its  return,  in  which  case  it  shall  not  be  a law 1 7 

The  President  must  have  ten  clear  days,  n.  69. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  neces- 
sary (except  on  a question  of  adjournment),  shall  be  pre- 
sented to  the  President  of  the  United  States,  and,  before 
the  same  shall  take  effect,  shall  be  approved  by  him,  or, 
being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a bill. . . 1 7 

The  effect  of  joint  resolutions,  and  the  reason  of  this 
rule,  n.  70. 

Congress  shall  have  power  : — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts,  and  provide  for  the  common  defense  and 
general  welfare  of  the  United  States;  but  all  duties,  im- 
posts, and  excises  shall  be  uniform  throughout  the  United 

States 1 * 8 

Power  defined  and  discussed,  and  the  word  compared 
by  marginal  references,  n.  71.  Taxes  defined,  notes  22,  72, 

144,  which  notes  distinguish  direct  and  indirect.  The  ex- 
tent of  the  power,  n.  73.  Of  States  over  national  banks, 
n.  74.  Duties  defined,  n.  75.  Imposts  defined,  notes  75, 

144.  Excise  defined  and  discussed,  n.  77.  Debts  defined, 
n.  78,  p.  97.  The  amount  each  year,  from  the  foundation 
of  the  government,  n.  7S,  pp.  97,  98.  The  debt,  Nov.  1, 

1867,  n.  78,  pp.  99,  100.  To  provide  for  the  common  de- 
fense defined,  notes  10,  78.  The  doctrines  of  the  different 
schools,  n.  79,  p.  101.  The  Confederate  States  Constitu 
tion,  n.  79,  pp.  101,  102.  And  general  welfare  defined, 
notes  11,  80.  Uniformity,  notes  22.  81,  144,  145. 

To  borrow  money  on  the  credit  of  the  United  States 1 8 

Each  term  defined,  notes  82,  83.  Under  what  laws 
treasury  notes  have  been  issued.  Money  and  legal  ten- 
ders defined  and  discussed,  notes  82,  83,  97, 98, 129,  155.  Ex- 
amples of  contracts  payable  in  treasury  notes,  n.  84,  pp. 

104, 105. 

To  regulate  commerce  with  foreign  nations,  and  among  the 

several  States,  and  with  the  Indian  tribes 1 8 

To  regulate  defined,  n.  85.  Commerce  defined,  n.  86.  "With 
foreign  nations  and  the  States  defined,  n.  106,  pp.  105,106. 

The  laws  of  States  which  violate,  notes  88,  89.  Eminent  do- 
main, n.  89.  Extent  of  judicial  power  over  it,  n.  89.  Concur 
rent  powers  of  the  States,  n.  89,  p.  108.  The  power  as  to 
slaves,  p.  90.  Commerce  with  the  Indian  tribes,  n.  91.  Their 
ownership  of  soil,  n.  91.  With  the  tribes  defined,  n.  91, 
p.  110.  Indians  not  subject  to  internal  revenue  tax, 
p.  110.  The  subject  discussed,  n.  91,  pp.  .1 10,  111.  The  re- 
lations of  the  tribes  defined,  n.  92. 

To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United 

States 1 8 

Naturalization  defined,  n.  93.  Carries  expatriation,  n. 

93.  The  subject  discussed,  n.  274.  Exclusive  in  Congress, 

Id.  Bankrupt  defined,  n.  94.  And  bankruptcy,  n.  95. 

The  power  of  the  States  over  the  subject,  n.  96. 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin ; 

and  fix  the  standard  of  weights  and  measures 1 8 

To  coin  and  money  defined,  notes  97,  98.  Is  it  the  only 
legal  tender?  notes  *82,  83,  84.  97,  98,  155.  Coin  has  no 
pledge  of  redemption,  n.  98.  History  of  regulating  value, 
n.  99.  No  express  grant  of  power  to  make  itold  and  silver 
a legal  tender,  n.  100.  Intrinsic  value,  n.  100.  To  fix  de- 
fined, n.  101.  The  acts  of  Congress  on  weights  and 
measures,  n.  102,  pp.  116,  117,  118.  The  metric  system 
authorized,  n.  102,  p.  117,  § 1.  The  tables,  Id.  § 2.  Mea- 
sures of  length,  Id.  Of  surface,  Id.  Of  capacity,  Id.  p.  118. 


cl. 

2 


3 


1 


2 


3 


4 


5 


pp. 

28,93 


28, 93 


27,  90 


28, 183 


28, 105 


28,112 


29, 115 


INDEX, 


517 


Art.  sec. 

Of  weights,  n.  202,  p.  118.  A ton,  n.  102,  pp.  116,  118. 

The  spirit  measure,  n.  102,  p.  116. 

To  provide  for  the  punishment  of  counterfeiting  the  securities 

and  current  coin  of  the  United  States 1 8 

To  establish  post-offices  and  post-roads 1 8 

To  establish,  defined  and  compared  with  the  word  else- 
where, n.  104 ; as  in  notes  8,  13,  93,  94,  95,  195,  243,  245. 
Post-offices  defined,  and  their  history  and  present  stand- 
ing given,  n.  106.  Post-roads  defined,  n.  106. 

To  promote  the  progress  of  science  and  useful  arts,  by  secur- 
ing, for  limited  times,  to  authors  and  inventors,  the 
exclusive  right  to  their  respective  writings  and  dis- 
coveries  1 S 

To  promote,  and  every  word  and  phrase,  defined,  n.  107, 
pp.  121,  122.  Inventors  defined,  and  the  law  discussed, 
n.  108. 

To  constitute  tribunals  inferior  to  the  Supreme  Court 1 8 

To  constitute,  and  tribunals,  defined,  and  doctrine  stated, 
n.  109.  Wfcen  bound  by  State  decisions,  Id. 

To  define  and  punish  piracies  and  felonies  committed  on  the 

high  seas,  and  offenses  against  the  law  of  nations 1 8 

“To  define”  defined,  n.  110.  To  punish  defined,  and 
death  punishment  stated,  n.  111.  Piracy  and  pirate  de- 
fined, n.  112.  Felony  defined  and  discussed,  n.  113.  High 
seas  defined,  n.  114.  Offenses  against  the  law  of  nations 
defined  and  discussed,  n.  115.  Law  of  nations  defined, 
n.  116. 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and 

make  rules  concerning  captures  on  land  and  water 1 8 

War,  civil  war,  and  our  forms  of  declaring,  defined  and 
given,  n.  117.  Gives  the  right  to  acquire  territory,  n.  118. 

Citizens  of  the  countries  at  war  are  personally  at  war, 
n.  118.  Their  disabilities,  n.  118.  The  effects  of  the  late 
rebellion,  n.  118.  Marauders  and  bushwhackers  not  pro- 
tected, n.  118,  p.  128.  Allegiance  during  civil  war,  n.  118, 
p.  129.  Gives  the  right  of  conscription,  notes  118,  121, 124. 

Marque  and  reprisal  defined,  notes  119,  120,  121.  The 
power  under  the  Confederation,  Arts.  VI.,  VII.,  VIII., 

pp.  11-18. 

To  raise  and  support  armies ; but  no  appropriation  of  money 

to  that  use  shall  be  for  a longer  term  than  two  years 1 8 

This  power  did  not  exist  in  Congress  under  the  Confed- 
eration, n.  122.  To  raise  and  support,  and  armies,  defined, 

123, 124, 125.  (See  Armies.) 

To  provide  and  maintain  a navy 1 8 

This  power  defined  and  discussed,  n.  127.  The  sovereign 
rights  on  public  ships,  n.  127,  p.  133.  Eanks  in  the  navy, 

Id.  The  right  of  Habeas  Corpus  over  enlistments,  n.  141, 
p.  145. 

To  make  rules  for  the  government  and  regulation  of  the  land 

and  naval  forces 1 8 

For  where  these  rules  are  to  be  found,  see  n.  129. 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 

the  Union,  suppress  insurrections,  and  repel  invasions  ...  1 8 

Militia  defined,  n.  130,  and  the  laws  in  relation  to  calling 
them  out,  n.  130.  The  laws  to  be  executed,  notes  131, 

238,240.  Insurrection  defined  and  discussed,  notes  132, 

234,  235.  Invasion,  the  law  about,  n.  133. 

To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such^art  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States, 
respectively,  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 

prescribed  by  Congress 1 8 

This  power  defined  and  discussed,  n.  134.  The  subject 
of  conscription,  n.  134. 

To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by 


cl. 


6 

7 


8 


10 


11 


12 

13 


14 

15 


16 


pp. 


29. 118 

29. 119 


29, 121 
29, 124 
29, 124 


29, 127 


29, 130 
29, 132 


29, 133 
29, 133 


29,185 


518 


INDEX, 


cession  of  particular  States,  and  the  acceptance  of  Congress, 
become  the  seat  of  the  government  of  the  United  States, 
and  to  exercise  like  authority  over  all  places  purchased  by 
the  consent  of  the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 

dock -yards,  and  other  needful  buildings 

Ceded  by  Maryland  and  Virginia,  n.  136.  The  power  to 
tax  in,  n.  137.  Jurisdiction  over  forts  and  arsenals,  n.  187. 

To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of 
the  United  .States,  0r  in  any  department  or  office  thereof. . 

Necessary,  and  this  incidental  power,  defined  and  dis- 
cussed, and  authorities  collected,  notes  188,  274.  Gives 
Congress  the  incidental  and  instrumental  powers,  n.  138. 

Congress.  The  migration  or  importation' of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year 
1808,  but  a tax  or  duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each  person 

Migration  defined,  and  the  clause,  n.  139. 

Congress.  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  bolding  any  office  of  profit  or  trust 
under  them  shall,  without  the  consent  of  Congress,  accept 
of  any  present,  emolument,  office,  or  title  of  any  kind 

whatever,  from  any  king,  prince,  or  foreign  State 

Title  of  nobility  defined,  n.  150.  Office  defined,  n.T51. 

Congress.  No  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imposts,  laid 
by  any  State  on  imports  or  exports,  shall  be  for  the  use 
of  the  Treasury  of  the  United  States;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress. 

This  article  discussed,  notes  162,  163,  164.  Imposts  on 
imports  defined,  n.  162.  Necessary  explained,  n.  162. 

Congress.  No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships-of-war,  in  time 
of  peace — enter  into  any  agreement  or  compact  with  an- 
other State,  or  with  a foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as 

will  not  admit  of  delay 

Tonnage  defined,  n.  164.  Troops  means  armies,  n.  164. 

Congress.  Each  State  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  a number  of  electors,  equal  to 
the  whole  number  of  senators  and  representatives  to 

which  the  State  may  be  entitled  in  the  Congress 

The  choice  now  by  elections,  n.  167.  The  same  who 
choose  Congress,  n.  167. 

Congress.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes; 
which  day  shall  be  the  same  throughout  tbie  United  States. 
The  days  fixed  by  law,  n.  168c. 

Congress.  The  Congress  may,  by  law,  provide  for  the  case  of 
removal,  death,  resignation,  or  inability,  both  of  the  Pre- 
sident and  Vice-President,  declaring  what  officer  shall 
then  act  as  President,  and  such  officer  shall  act  accord- 
ingly, until  the  disability  be  removed,  or  a President  shall 

be  elected 

The  act  of  Congress  upon  the  subject,  n.  Ilf,  § 8,  9. 
List  of  Vice-Presidents  who  have  become  President,  n.  172. 

Congress.  The  Congress  may  by  law  vest  the  appointment  of 
such  inferior  officers,  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments   

Clerks  and  commissioners  of  courts  are  such,  n.  188. 
(See  Civil  Officer*.) 

Congress,  The  President  shall,  from  time  to  time,  give  to  the 


Art.  sec.  cL 


1 8 17 


1 8 18 


19  1 


19  8 


1 10  2 


1 10  8 


2 12 


2 13 


2 15 


2 2 2 


pp. 

80,136 
30, 188 

80, 140 
31,152 

32. 161 

82.161 
32,164 
84,167 

34, 169 
85,174 


INDEX, 


519 


Congress  information  of  the  state  of  the  Union,  and  recom- 
mend to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient ; he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and,  in 
case  of  disagreement  between  them  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time 

as  he  shall  think  proper 

Information,  how  given,  n.  187.  Extra  sessions,  n.  188. 
Practice  of  the  courts  as  to  revolutionary  governments, 
Id.  Supreme  Court  cannot  control  President’s  discretion, 
n.  189.  His  power  as  to  commissioning,  n.  190. 

Congress.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish  

See  Judicial  Power,  notes  ^95-209.  J udicial  power  de- 
fined, Id.  It  is  obligatory  on'Cdhgress  to  vest  the  power,  Id. 
Congress  may  define  as  well  as  establish  jurisdiction  of 
inferior  cohrts,  196.  List  of  the  present  and  past  judges, 
197. 

Congress.  In  certain  cases  the  Supreme  Court  shall  have  appel 
late  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions, and  under  such  regulations,  as  the  Congress  shall 

make 

Appellate  jurisdiction  defined,  n.  211.  Is  within  the 
control  of  Congress,  Id.  Congress  can  only  confer  juris- 
diction upon  the  national  courts. 

Congress.  When  crimes  are  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 

by  law  have  directed 

The  reason  of  this  rule,  n.  213.  Where  tried,  when  the 
crime  has  not  been  committed  in  the  State,  n.  214. 

Congress  shall  have  power  to  declare  the  punishment  of  treason ; 
but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person 

attainted 

Punishment  defined,  n.  217.  Attainder  defined,  n.  142. 
Corruption  of  blood  defined,  n.  217.  Punishment  of  trea- 


Art.  sec.  cL 


3 2 3 


3 3 


Congress.  Full  faith  and  credit  shall  be  given  in  each  State,  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and 

proceedings,  shall  be  proved,  and  the  effect  thereof 4 

(See  Credit , n.  218.)  The  acts  of  authentication,  n.  219. 

Seal  of  the  State  imports  absolute  verity,  Id.  When  a 
State  statute-book  may  be  read,  Id.  The  effect  of  a record 
proved  under  the  act,  p.  220,  of  ‘‘any  State”  defined,  p. 

219.  How  judicial  records  must  be  certified,  Id.  p.  219. 
Their  effect  when  proved,  notes  218,  219.  There  must 
have  been  service  or  appearance,  notes  218,  219,  pp.  215, 

220.  Proof  of  records  not  judicial,  n.  219,  p.  221,  § 1. 
Decisions  upon  the  statute,  n.  219.  Applies  to  Territories 
as  well  as  States,  n.  219,  p.  222,  § 2.  This  act  constitu- 
tional, n.  219. 

Congress.  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State ; nor  any  State 
be  formed  by  the  junction  of  two  or  more  States,  or  parts 
of  States,  without  the  consent  of  the  legislatures  of  the 

States  concerned,  as  well  as  of  the  Congress 4 

New  States  defined,  n.  229;  the  Confederation  on  the 
subject,  Art.  XI.  p.  19.  For  a full  history,  n.  229.  List  of 
new  States,  and  dates  of  admission,  n.  230.  The  effect  of 
admission,  Id. 

Congress.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States; 


38 


PP- 


36,188 


36,189 


37,204 


37,209 


38,213 


38,213 


39,234 


4 


520 


INDEX. 


Art  sec.  cl 

and  nothing  in  this  Constitution  shall  he  so  construed  as 
to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State 4 3 2 

“To  dispose  of”  defined,  n.  231.  “Needful  rules  and 
regulations  ” defined,  Id.  “ Territory  ” defined,  Id. 

Means  public  property,  p.  238.  A full  discussion  of  the 
subject,  n.  231.  “Other  property”  defined,  n.  232.  The 
“claims”  defined,  n.  232. 

Congress.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution;  or,  on  "the  application  of  the  legislatures 
of  two- thirds  of  the  several  States,  shall  call  a convention 
for  proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes,  as  part  of  this  Constitu- 
tion, when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  States,  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  Mitification  may 
be  proposed  by  the  Congress:  Provided,  that  no  amend- 
ment which  may  be  made  prior  to  the  year  1808,  shall,  in 
any  manner,  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article;  and  that  no  State,  without  its 
consent,  shall  be  deprived  of  its  equal  suffrage  in  the 

Senate 5 

Amendments  have  only  been  proposed  to  the  legisla- 
tures, n.  236.  The  President’s  approval  unnecessary,  Id. 

History  of  the  amendments,  notes  244,  274-286. 

Congress.  The  senators  and  representatives  in  Congress  shall 
be  bound  by  an  oath  or  affirmation  to  support  this  Con- 
stitution . . . 6 8 

What  officers  are  embraced,  n.  242.  The  oath  of  1789, 

Id.  Congress  has  the  right  to  superadd  to  it,  Id.  The 
test  oath,  Id.  Religious  tests,  Id. 

Congress  shall  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech  or  of  the  press;  or  the  right  of  the 
people  peaceably  to  assemble  and  to  petition  the  govern- 
ment for  a redress  of  grievances.  Amendments 1 

“Establishment”  and  “religion”  defined  and  discussed, 
n.  245,  Christianity  is  not  a part  of  municipal  law,  Id. 

This  does  not  restrain  the  States,  Id.  The  effect  upon  the 
Catholic  religion  in  Texas,  Id.  “Freedom  of  speech”  de- 
fined, n.  246’;  and  “ of  the  press,”  n.  247.  The  right  to 
petition,  n.  248. 

Congress.  The  certificates  of  the  electoral  votes  for  President 
and  Vice-President  of  the  United  States  shall  be  opened 
by  the  President  of  the  Senate,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  and  the  votes  shall 


then  be  counted.  Amendments 12  1 

Congress  shall  have  power  to  enforce  this  article  by  appropriate 

legislation.  Amendments 13  2 

“ Appropriate”  defined  and  compared  with  “ necessary,” 


notes  174.  238.  This  gave  power  to  pass  the  Civil  Rights  . 

Bill,  n.  274. 

Congress.  The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article.  Amend- 
ments  14  5 

Congress.  Powers  of,  under  the  Confederation,  to  determine  on 
peace  and  war  (with  certain  exceptions),  Art.  IX.  p.  14. 

Of  sending  and  receiving  ambassadors,  entering  into 
treaties  and  alliances  (with  certain  restrictions)^  of  decid- 
ing on  captures  on  land  and  water;  granting  letters  of 
marque  and  reprisal;  appointing  courts  for  the  trial  of 
piracies  and  felonies;  a court  of  appeal  in  what  cases,  and 
how  exercised,  Art.  IX.  pp.  14-16.  To  determine  contro- 
versies concerning  the  rights  of  soil,  p.  16.  To  coin  money 
and  fix  the  standard  of  weights  and  measures;  to  regulate 
trade  with  the  Indians,  when,  and  how ; to  establish  post- 
offices  and  collect  postage  ; to  appoint  what  army  and  navy 


pp. 

89,238 


40, 246 


41  250 


43.254 


46, 165 
48, 279 


50,280 


INDEX. 


521 


officers ; to  appoint  a “ committee  of  the  States to  ad- 
journ, when,  &c.,  Art.  IX.  pp.  16, 17.  Restrictions  upon 
Congress,  Art.  IX.  p.  18. 

Connecticut.  Declared  Independence,  p.  7.  One  of  the  Con- 
federation, pp.  9, 21.  Signed  the  Constitution,  p.  42. 

Connecticut.  Entitled  to  five  representatives  in  the  first  Con- 
gress  

By  census  of  1860,  n.  5,  p.  68.  Qualification  for  voters 
in,  n.  17,  p.  60.  Numbers  through  each  decade,  pp.  69,  70, 
71.  Assigned  to  the  second  judicial  circuit,  n.  197.  Rati- 
fied 18th  constitutional  amendment,  n.  274;  the  14th 
amendment,  275. 

Consent  of  Congress.  No  person  holding  any  office  of  profit  or 
trust  under  the  United  States  shall,  without  the  consent 
of  Congress,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or 

foreign  State *. 

Office  defined,  n.  151.  Only  relates  to  officers,  n.  151,  p. 
155. 

Consent  of  either  house.  Neither  house,  during  the  session  of 
Congress,  shall,  without  the  consent  of  the  othty,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than  that 

in  which  the  two  houses  shall  be  sitting 

The  reason  of  the  rule,  n.  52. 

Consent  of  Congress.  No  State  shall,  without  the  consent  of  the 
Congress,  lay  any  imposts  or  duties  on  imports  or  ex- 
. ports,  except  what  may  be  absolutely  necessary  for  execut- 
ing its  inspection  laws 

The  various  terms  defined,  n.  162.  How  far  copied  from 
the  Confederation,  Art.  VI.  p.  11. 

Consent  of  Congress.  No  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  of  tonnage ; keep  troops  or  ships-of- 
war  in  time  of  peace;  enter  into  any  agreement  or  com- 
pact with  another  State,  or  with  a foreign  power,  or  en- 
gage in  war,  unless  actually  invaded,  or  in  such  imminent 

danger  as  will  not  admit  of  delay 

Tonnage  defined,  n.  163.  Troops  defined,  n.  164. 

Consent  of  the  legislatures.  No  State  shall  be  formed  by  the 
junction  of  two  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  legislatures  of  the  States  concern- 
ed, as  well  as  of  the  Congress 

(See  n.  236.) 

Consent.  No  State,  without  its  consent,  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate 

Consent.  This  Constitution  adopted  or  done  in  convention  by 

the  unanimous  consent  of  the  States  present 

See  note  defining  ratification  and  giving  dates  of  con- 
sent, n.  243. 

Consent.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a manner  to  be  prescribed  by  law  Amend- 
ments  

This  amendment  defined  and  explained,  n.  250. 

Constitution  of  the  United  States.  Its  roots,  where  found. 
Pref.  p.  iii.  In  Magna  Charta,  &c.  Id.  The  principles 
proclaimed  in  the  Declaration  of  Independence,  Id.  p.  iv. 
Its  division  of  powers  and  expositors,  Pref.  p.  iv.  v.  Who 
are  sworn  to  support  it,  Pref.  p.  v.,  n.  242.  Where  to  be 
found,  and  its  great  scarcity,  Pref.  p.  v.  Great' inattention 
in  regard  to  it,  Id.  p.  v.  vi.  Fatal  mistakes  in  regard, 
to  it.  Pref.  p.  v. — ix.  Motives  for  this  work,  Pref.  p.  ix. 
x.  xi.  What  seems  to  be  narrowed  down  to  a principle, 
Pref.  p.  xiii.  notes  274, 286.  Has  no  authoritative  expounder, 
Pref.  p.  xiv.  Printed  as  originally  written,  pp.  22-41. 
Amendments  of,  pp.  43-50.  Directions  for  reading  the 
annotated,  p.  51.  Defined,  is  a government  and  not  a 
mere  compact  or  league,  n.  2.  When  adopted,  n.  3.  When 
ratified,  n.  243.  Does  not  create  the  citizen,  n.  169.  How 


Art. 


1 


1 


1 


1 


1 


4 

% 

7 


3 


sec. 


2 


9 


5 


10 


10 


3 


cl. 


3 


8 


4 


3 


1 


pp. 


23, 67 


31, 152 


26,88 


32, 161 


32. 161 

39,234 

40, 246 
41,252 

44,256 


t 


522 


INDEX, 


Art.  sec. 

construed,  n.  170;  n.  46.  Still  endures  unimpaired, 
n.  2S6. 

Constitution  ordained  and  established  in  order  to  form  a more 
perfect  Union;  establish  justice;  ensure  domestic  tran- 
quillity ; provide  for  the  common  defense ; promote  the 
general  welfare,  and  to  secure  the  blessings  of  liberty. 

Preamble . . . •. 

It  is  a government,  and  the  supreme  law,  n.  2.  Went 
into  operation,  when,  n.  3.  Created  a new  government; 
its  mutations  not  a compact,  n.  4. 

Constitution.  Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in 

any  department  or  office  thereof 1 8 

This  clause  explained,  notes  138, 274. 

Constitution.  No  person  except  a natural  born  citizen,  or  a 
citizen  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President  of  the  United 

States 2 1 

The  reason  explained,  n.  170. 

Constitution  of  the  United  States.  The  President  shall,  before 
he  enter  on  the  execution  of  his  office,  take  an'  oath  that 
he  will,  to  the  best  of  his  ability,  preserve,  protect,  and 

defend  the  Constitution  of  the  United  States” 2 1 

The  President  is  the  only  officer  required  to  take  this 
oath,  n.  174. 

Constitution.  The  judicial  power  shall  extend  to  all  cases,  in 

law  and  equity,  arising  under  the  Constitution 3 2 

Judicial  power  defined,  n.  199.  Does  not  extend  to  ail 
questions  arising  under  the  Constitution,  n.  199.  Cases 
arise  when,  n.  200. 

Constitution.  Nothing  in  this  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States,  or  of  any 
particular  State,  respecting  the  territory  or  other  property 

thereof 4 3 

This  applied  to  the  claims  of  North  Carolina  and  Georgia, 
n.  232. 

Constitution.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  or,  on  the  application  of  the  legislatures  of 
two-thirds  of  the  several  st;  tes,  shall  call  a convention  for 
proposing  am^idments,  which,  in  either  case,  shall  be  valid, 
to  all  intent: Wind  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  pro- 
posed by  the  Congress;  provided  that  no  amendment 
which  may  be  made  prior  to  the  year  1808,  shall,  in  any 
manner,  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article  ; and  that  no  State,  without  its 
consent,  shall  be  deprived  of  its  equal  suffrage  in  the 

Senate 5 

This  power  exercised,  notes  236,  244,  274,  275. 

Constitution.  All  debts  contracted,  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shsftl  be  as 
valid  against  the  United  States  under  this  Constitution 

as  under  the  Confederation 6 

The  reason  explained,  n.  237. 

Constitution.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding 6 

Constitution  or  laws  of  any  State.  The  judges  in  every  State 
shall  be  bound  by  the  Constitution,  laws,  and  treaties  of 


cl. 


18 


4 


7 


1 


2 


1 


2 


PP- 

22,53 

30, 138 

34,167 

35, 170 
37,194 

39,238 


40,  246 
40,247 

40,247 


INDEX, 


523 


Art. 

the  United  States,  any  thing  in  the  Constitution  or  laws  of 

any  State  to  the  contrary  notwithstanding 6 

The  Constitution  creates  the  government,  n.  238.  Is 
paramount,  n.  199. 

Constitution.  The  senators  and  representatives  before  men- 
tioned, and  the  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  or 
affirmation  to  support  this  Constitution  ; but  no  religious 
test  shall  ever  be  required  as  a qualification  to  any  office 

of  public  trust  under  the  United  States 6 

What  officers ; the  oath ; power  over ; test  oath ; 
it  binds  the  citizens  and  States,  n.  242.  Remarks  on, 

281. 

Constitution.  The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitu- 


tion between  the  States  so  ratifying  the  same 7 

Constitution.  The  adoption  of  the  Constitution,  done  in  con- 
vention by  the  unanimous  consent  of  the  States  present, 
the  17th  day  of  September,  a.  d.  1787,  and  of  the  indepen- 
dence of  the  United  States  the  twelfth 7 

Ratification,  and  all  the  other  words,  defined,  n.  243, 


Dates  of  ratification,  Id.  The  terms  in  this  defined  and 
explained,  n.  268. 


Constitution.  The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 

retained  by  the  people.  Amendments 9 

Constitution.  The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States,  respectively,  or  to  the  people. 
Amendments  10 


Delegated,  and  this  power,  defined  and  explained,  n.  269. 

The  word  “ expressly”  was  rejected,  Id. 

Constitutional  law.  The  act  of  1795,  to  call  forth  the  militia, 
constitutional,  n.  130,  p.  134.  The  act  of  1863,  declar- 
ing the  militia,  national  forces,  constitutional ; denied,  n. 

134,  p.  136.  The  passenger  tax  laws  unconstitutional, 
n.  88. 

Only  four  acts  of  Congress  have  been  declared  unconsti- 
tutional, n.  274,  p.  276.  So  a State  law,  requiring  an  im- 
porter to  take  out  license  before  selling  goods,  n.  89, 

p.  108. 

Constitutions  of  States.  Rules  of  suffrage  under,  n.  17.  Where 
there  are  two  constitutions  in  one  State,  the  political  • 
authorities  must  determine  the  true  one,  n.  199,  p.  195, 
n.  238.  Of  the  Rebel  States,  n.  274,  p.  283,  § 5. 

Construed.  Nothing  in  this  Constitution  shall  be  so  construed 
as  to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State. 4 

The  object  of  this,  232.  Common  sense  rules  of  inter- 
pretation to  be  employed,  notes  46,  170,  274.  So  as  to 
effect  the  objects,  138. 

Construed.  The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.  Amendments 9 

Construed.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments  11 

This  was  an  amendment  of  the  2d  section  of  the  third 
article,  notes  205a,  270. 

Consuls.  (See  Appointments.)  Cannot  act  without  exequaturs , 
n.  188.  The  grade  defined,  n.  202. 

Consuls.  The  judicial  power  shall  extend  to  all  cases  affecting 

ambassadors,  other  public  ministers,  and  consuls,  in  which  , « 
the  Supreme  Court  shall  have  original  jurisdiction  -j  « 


sec.  cl. 
2 


3 


3 2 


2 1 
2 2 


pp. 

40,247 


41, 250 

41,  252 
41,  252 

45,268 
45,  269 


39, 238 

45,  268 

46,  m 

37,194 

37,204 


524 


INDEX, 


Art.  sec. 

Contracts.  No  State  shall  pass  any  law  impairing  the  obligation 

of  contracts 1 10 

What  laws  enter  into  the  contract,  n.  157.  Validity  and 
remedy,  how  connected,  n.  157,  p.  156.  Repealing  laws 
must  not  impair,  Id.  Monopolies,  how  affected,  Id. 

Contract  defined  and  discussed,  n.  157,  p.  157.  Private  in- 
corporations are,  Id.  Mere  retrospective  laws  are  not, 
n.  158.  How  exemption  laws  impair,  n.  159.  And  stay 
laws,  n.  160.  And  redemption  laws,  n.  160.  Laws  which 
merely  affect  the  remedy  do  not  impair,  n.  161.  Nor  laws 
which  merely  declare  the  validity  of,  n.  161. 

Contracted.  All  debts  contracted,  and  engagements  entered  into 
before  the  adoption  of  this  Constitution,  snail  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 

the  Confederation 6 

This  was  only  a moral  and  general  obligation,  n.  237. 

Controversies.  The  judicial  power  shall  extend  to  controversies 
to  which  the  United  States  shall  be  a party ; to  contro- 
versies between  two  or  more  States ; between  a State  and 
citizens  of  another  State ; between  citizens  of  different 
States ; between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a State  or 
the  citizens  thereof  and  foreign  States,  citizens,  or  subjects.  3 2 

See  these  several  classifications  fully  explained,  notes 
199-200.  (See  Case.) 

Controversies  between  States  settled  by  Congress  under  the 
Confederation,  Art.  IX.  p.  14. 

Controversy.  In  suits  at  common  law,  where  the  value  in  cpn- 
troversy  shall  exceed  twenty  dollars,  the  right  of  trial  by 

jury  shall  be  preserved.  Amendments 7 

This  amendment  discussed  and  explained,  n.  263.  The 
parties  may  waive  the  right  of  trial  by  jury,  n.  263. 

Convene  Congress.  The  President  m^y,  on  extraordinary  oc- 
casions, convene  both  houses,  or  either  of  them 2 3 

The  power  has  been  frequently  exercised,  n.  188. 

Convened.  The  United  States  shall,  on  application  of  the 
executive  of  a State,  when  the  legislature  cannot  be 

convened,  protect  such  State  from  domestic  violence 4 4 

The  President  must  determine  what  body  of  men  con- 
stitute the  legislature,  and  who  is  the  governor,  n.  235. 

Convention.  The  adoption  of  the  Constitution,  done  in  Conven- 
tion by  the  unanimous  consent  of  the  States  present,  the 


17th  September,  a.  d.  1787 7 

Conventions  for  proposing  and  ratifying  amendments  of  the 

Constitution.  (See  Constitution .)., 5 

Conventions  of  States.  The  ratification  of  the  conventions  of 
nine  States  shall  be  sufficient  for  the  establishment  of  this 
Constitution  between  the  States  so  ratifying  the  same 7 


No  such  proposal  has  ever  been  made  by  the  States. 

This  was  intended  to  leave  the  action  to  the  people,  n. 

243.  Not  by  the  States  in  their  sovereign  capacities,  n!  6. 

Not  a majority  of  the  whole  people,  n.  6. 

Conventions  of  the  rebel  States  to  frame  Constitutions,  n.  27,  p.  284, 

§ 5.  Delegates  to  be  elected,  n.  276,  p.  2S4.  (Supplemen- 
tary act)  § 2.  The  voters  to  decide  for  or  against  a con- 
vention, Id.  § 3.  If  for,  to  be  held,  Id.  § 4.  Constitution  to 
be  submitted  by  the,  to  the  voters,  Id.  § 4.  If  adopted,  the 
President  of,  to  transmit  the  Constitution  to  Congress,  Id. 

§ 5.  The  conventions  to  prescribe  the  fees,  &c.,  Id.  § 8. 

The  conventions  have  been  carried  and  met  in  all  the 
States  but  Texas,  Id.  278. 

Convicted.  No  person  shall  be  convicted  on  an  impeachment, 
without  the  concurrence  of  two-thirds  of  the  senators 

present 1 8 

Convicted.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or 

on  confession  in  open  court 3 8 

This  refers  to  the  proof  on  the  trial,  n.  216. 


cl. 

1 


1 


1 


1 


6 

1 


pp. 

81, 153 


40,247 


87,194 

45,266 
36, 183 
39,242 

41, 252 
40,  246 

41,252 


25,81 

88,211 


\ 


INDEX. 


525 


Art.  sec. 

Copyright.  An  author  has  none  except  what  is  secured  by  act  of 
Congress,  n.  10T,  p.  122. 


Corruption  of  blood.  No  attainder  of  treason  shall  work  corrup- 
tion of  blood  or  forfeiture,  except  during  the  life  of  the 

person  attainted 3 3 

By  corruption  of  blood  all  inheritable  qualities  are 
destroyed,  n.  142. 

Counsel.  In  all  criminal  prosecutions  the  accused  to  have  the 

assistance  of  counsel  for  his  defense.  Amendments 6 

When  this  was  adopted  counsel  were  not  allowed  in 
England,  n.  262. 

Counterfeiting.  Congress  shall  have  power  to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current 

coin  of  the  United  States 1 8 

Defined ; power  of  States  to  punish,  n.  103. 

Court  of  impeachment.  (See  Impeachment.) 

Court.  (See,  Supreme  Court.) 2 2 

Court.  No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 

confession  in  open  court 3 3 

This  means  the  trial  not  the  preliminary  examination, 
n.  216. 

Court  of  the  United  States.  In  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 


right  of  trial  by  jury  shall  be  preserved ; and  no  fact  tried 
by  a jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the  com- 
mon law.  Amendments 7 

This  includes  all  suits  not  of  equity  or  admiralty  juris- 
diction, n.  263.  The  common  law  of  England  is  meant, 
n.  263.  No  fact  revised,  264.  Instances  of  violation,  n.  265. 

Courts.  Congress  shall  have  power  to  constitute  tribunals  inferior 

to  the  Supreme  Court 1 8 

To  constitute  tribunals,  defined,  n.  109.  The  jurisdic- 
tion of  such  courts,  Id.  Congress  can  regulate  their  juris- 
diction, n.  196. 

Courts.  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may,  from  time  to  time,  ordain  and  establish. 

(See  Judicial  Power.) 3 1 

Judicial  power  defined,  n.  195.  Mandatory  upon  Con- 
gress to  vest,  Id.  Supreme  Court  defined,  Id.  * The  present 
organization  of  the  Supreme  Court,  197.  List  of  all  the 
judges  who  presided  in  the,  Id.  J urisdiction  of  the,  n.  210. 

Courts  of  law.  The  Congress  may,  by  law,  vest  the  appointment 
of  such  inferior  officers  as  they  think  proper  in  the  Presi- 
dent alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments   2 2 

Clerks  of  the  court  are  such  officers,  n.  183,  and  commis- 
sioners of  bail  and  affidavits,  Id. 

Crawford,  William  II.  Presiding  officer  of  the  Senate,  n.  88, 
p.  79. 

Credit  of  the  United  States.  Congress  shall  have  power  to  bor- 
row money  on  the  credit  of  the  United  States 1 8 

(See  Borrow , notes  82,  83,  84.) 

Credit.  No  State  shall  emit  bills  of  credit 1 10 

(See  Bills  of  Credit) ; defined,  n.  154. 

Credit.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 

other  State 4 1 

Full  faith  and  credit  defined,  n.  218.  (See  Judgments 
and  Judicial  Proceedings , notes  218,  219.) 

A judgment  of  a State  court  has  the  same  credit  in 
every  other  State  which  it  has  in  its  own,  n.  218.  Provided 
that  there  has  been  service  or  appearance,  Id.  The  judg- 
ments are  conclusive,  Id. 

Crime.  Defined,  n.  193;  distinguished  from  misdemeanor,  n.  194. 

Subject  fully  discussed,  Id. 


cl. 


2 


6 

2 

1 


9 


2 


2 

1 


pp. 

38,213 

44,263 

29, 118 
35, 174 
38, 211 

45,266 

29,124 

36,189 

35,147 

2S,  103 
31, 153 

38,213 


526 


INDEX 


Art. 

Ceime.  A person  charged  with  treason,  felony,  or  other  crime, 
and  fleeing  from  justice,  to  be  delivered  up  to  the  State 

having  jurisdiction  of  the  crime 4 

The  State  making  the  demand  must  determine  what  is 
crime,  n.  223. 

Crime.  No  person  shall  be  held  to  answer  for  a capital,  or  other- 
wise infamous  crime,  unless  on  a presentment  or  indict- 
ment of  a grand  jury.  Amendments 5 

These  terms  defined,  n.  253. 

Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  &e.  (See  Slaves,  n.  274.)  12 

Crimes.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 

shall  be  by  j ury f.  3 

Trial  and  crimes  in  this  connection  defined,  n.  212. 

The  crimes  must  be  against  an  act  of  Congress;  the 
jury  must  consist  of  twelve  men,  Id.  (See  Crime.') 

Criminal  case.  Nor  shall  any  person  be  compelled,  in  any  crimi- 
nal case,  to  be  a witness  against  himself.  Amendments..  5 

Criminal  cases.  Jury  not  the  judges  of  the  law  in,  n.  212. 

Criminal  prosecutions.  In  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed ; which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation  ; to  be  confronted 
with  the  witnesses  against  him ; to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor;  and  to 
have  the  assistance  of  counsel  for  his  defense.  Amend- 
ments  6 

The  accused  defined,  n.  260.  Character  of  crimes  de- 
fined. Eelates  to  war  as  well  as  peace,  Id.  Compulsory 
process  and  powers  defined,  261. 

Cruel  and  unusual  punishment.  Excessive  bail  shall  not  be  re- 
quired, nor  excessive  fines  imposed,  nor  cruel  and  un- 
usual punishments  inflicted.  Amendments 8 

The  sum  required  must  not  be  too  large,  n.  268. 

A fine  of  fifty  dollars,  and  imprisonment  three  months, 
for  selling  liquor  without  license  is  not  cruel,  n.  267. 

Cushing,  William.  One  of  the  Supreme  Judges,  n.  197,  p.  193. 


sec.  cl. 


2 2 


1 


2 3 


pp. 

38,229 
44,258 
37, 209 
44,258 


44, 263 


45,267 


Dallas,  George  M.  Yice-President,  notes,  37,  78. 

Dana,  Francis,  of  Mass.  Signed  Articles  of  Confederation,  p.  21. 

Danger.  (See  Public  Danger.) 

Daniel  Peter  Y.  Associate  Justice  of  the  Supreme  Court, 
n.  197. 

Dates  in  this  work.  Of  the  Dec  of  Ind.,  p.  7.  Of  Articles  of  Con- 
federation, p.  21.  Of  Constitution  of  the  United  States, 
pp.  41,  252 ; and  its  ratification  by  the  States,  n.  243.  Of  the 
amendments,  n.  244.  When  the  Constitution  went  into 
operation,  n.  3.  Of  the  State  Constitutions  qualifying 
voters,  n.  17.  Of  the  several  censuses,  n.  24,  pp.  69-71.  Of  ser- 
vice of  the  Speakers  of  the  House,  n.  26,  p.  73.  Of  service 
of  the  Vice-Presidents,  n.  37.  Of  service  of  presiding  offi- 
cers of  Senate,  n.  38.  Of  service  of  the  Presidents,  n.  166. 
Of  service,  births,  and  deaths  of  the  judges  of  the  Supreme 
Court,  n.  197.  Of  admission  of  the  new  States,  n.  230.  Of 
the  several  reconstruction  acts,  n.  276.  Of  the  act  for 
election  of  senators,  n.  30.  Of  the  act  fixing  sessions  of 
Congress,  n.  43.  Of  the  public  debt,  n.  78,  pp.  96-99.  Of 
the  acts  to  issue  treasury  notes,  n.  83.  Of  the  act  regu- 
lating weights  and  measures,  n.  102.  Of  the  first  post- 
offices,  n.  105.  Of  the  declarations  of  war,  notes  117,  118. 
Of  the  acts  punishing  felony,  n.  113.  Of  the  recognition  of 
the  Confederates  by  England,  n.  118,  p.  129.  Of  the  acts 
for  organizing  the  militia,  n.  134. . Of  the  suspension  of 
the  writ  of  Habeas  Corjpus , n.  141,*  p.  143.  Of  election  of 
President,  n.  168c.  Of  the  act  for  filling  vacancies  in  the 
office  of  President,  n.  172.  Of  Vice-Presidents  becoming 


INDEX. 


527 


Presidents,  and  of  the  deaths  of  Presidents  Harrison,  Tay- 
lor, and  Lincoln,  n.  172.  Of  the  Tenure  of  Office  Bill, 
n.  184,  the  acts  for  allotting  the  Supreme  Court,  n.  197.  01 
the  Judiciary  Act,  n.  206. 

Davis,  David.  One  of  the  Associate  Justices  of  the  Supreme  Court 
n.  198. 

Davis,  John  W.  Was  Speaker,  n.  26,  p.  73. 

Dayton,  Jonathan,  of  New  Jersey.  Signed  this  Constitution, 
pp.  42,  252.  Was  Speaker,  n.  26,  p.  72. 

Death.  In  case  of  the  death  of  the  President,  the  duties  of  that 
office  shall  devolve  on  the  Vice-President,  and  in  case  of 
the  death  of  both  President  and  Vice-President,  Congress 
shall  by  law  declare  what  officer  shall  then  act  as  Presi- 
dent   

Debate.  Senators  and  representatives,  for  any  speech  or  debate 
in  either  house,  shall  not  be  questioned  in  any  other 

place  

Debt.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insur- 
rection or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebel- 
lion against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave ; but  all  such  debts,  obliga- 
tions and  claims  shall  be  held  illegal  and  void.  Amend- 
ments. This  amendment  discussed,  n.  282 

Debts  of  the  United  States.  Congress  shall  have  power  to  pay 
the  debts  of  the  United  States.  This  section  defined, 
n.  78.  The  debts  from  the  foundation  of  the  government. 
Debts.  No  State  shall  make  any  thing  but  gold  and  silver  coin  a 

tender  in  payment  of  debts 

Debts.  All  debts  contracted  and  engagements  entered  into  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution  as  under  the 

Confederation 

Decimeter.  A measure  of  length,  n.  102,  p.  117,  § 2. 
Decitizenize.-  No  power  in  the  States  to,  Pref.  p.  ix.  No  law  to,  as 
in  France,  n.  169. 

Declaration  of  Independence,  pp.  1-8. 

Declaratory.  Some  of  the  amendments  were,  others  restrictive, 
n.  258,  p.  262. 

Defense.  Constitution  established  to  provide  for  the  common 

defense.  Preamble 

Defense.  Congress  shall  have  power  to  provide  for  the  common 

, defense 

Defense.  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  have  the  assistance  of  counsel  for  his  defense. 

Amendments 

Defend  the  Constitution.  The  President  of  the  United  States 
shall  swear  or  affirm  to  preserve,  protect,  and  defend  the 

Constitution  of  the  United  States 

Definitions  of  words  and  terms.  Accusation,  n.  260.  Accused, 
n.  260.  “Agreement  or  Compact,”  n.  164.  Ambassador, 
n.  180.  Armies,  n.  124.  Arts,  n.  107.  Attainder,  n.  142. 
Authors,  n.  107.  Bail,  n.  266.  Bankrupt,  n.  94.  Bank- 
ruptcy, n.  95.  “ Bill  of  Attainder,”  n.  142.  “ Bills  of 

Credit,”  n.  154.  Capitation,  n.  144.  Census,  n.  145.  Citi- 
zen, notes  220,  221,  274.  Coin,  n.  97.  Commerce,  n.  86. 
Common  Defense,  notes  10,  79.  “Common  Law,” 
n.  263.  Compact,  n.  164.  Compulsory  Process,  n.  261.  Con- 
gress, n.  15.  Constitution,  n.  109.  Consul,  n.  181.  Contract, 
n.  157.  Controversies,  n.  206.  “Corruption  of  Blood,” 
n.  217.  Credit,  n.  154.  Crime,  n.  193.  Counterfeiting,  n.  103. 
“Declare  War,”  n.  117.  Define,  n.  110.  Delegated^  n.  269. 
Deny,  n.  268.  “ Direct  Taxes.”  notes  22,  144.  Disparage 
n.  268.  Dispose  of,  n.  231.  “ Domestic  Tranquillity,”  n.  9. 
1 “ Domestic  Violence,”  n.  235.  “ Due  Process  of  Law,”  n.  257. 


Art. 


1 


14 

1 

1 


6 


1 

6 

2 


sec.  cl. 


1 5 

6 1 


4 

8 1 
10  1 


1 


8 1 


1 7 


PP- 


34,169 

26,88 


49,  280 

28,94 
81, 153 

40, 247 


22,53 
28,  94 

44,  263 

35,170 


528 


INDEX, 


Art.  sec.  cL  pp. 

Duties,  n.  75.  Elections,  n.  44.  Electors,  notes  16,  167. 

Enumeration,  n.  268.  Escaping,  n.  227.  Establish,  n.  104. 

Establishment,  n.  245.  Excise,  n.  77.  “Executive  Power,” 
n.  165.  Ex  Post  Facto,  notes  148,  156.  “ Faith  and 

Credit,”  n.  218.  Felony,  n.  113.  Fix,  n.  101.  Flee,  n. 

224.  Freedom  (of  speech  and  of  the  press),  notes  246, 

247.  “General  Welfare,”  notes  11,  80.  Grand  Jury,  n. 

253.  Guarantee,  n.  233.  Habeas  Corpus,  n.  141.  High 
Crimes,  n.  193.  High  Seas,  n.  114.  Immunities,  n.  221. 

Imposts,  notes  76, 146, 162.  Indictments,  n.  253.  “ Inhabi- 
tant of  a State,”  n.  19.  Insurrection,  n.  132.  Invasion, 
n.  133.  Invent,  n.  108.  Judgment,  n.  40.  Judicial  Pro- 
ceedings, n.21S.  Jurisdiction, "notes  210,  211.  Just  Compen- 
sation, n.  259.  Justice,  n.  8.  Law  of  Nations,  n.  116. 

Laws  of  the  Union,  n.  131.  Legislative  Power,  n.  14. 

Liberty,  n.  12.  Make  Rules,  n.  129.  Marque,  n.  120. 

Migration,  n.  139.  Militia,  n.  130.  Misdemeanors,  n.  194. 

Money,  notes  83,  98,  149.  Natural  Born,  n.  169.  Natu- 
ralization, n.  93.  Navy,  n.  128.  Necessary,  n.  138.  Need- 
ful Rules  and  Regulations,  n.  231.  Nobility,  n.  150 
Nominate,  n.  179.  Members,  n.  24.  Offenses  against  the 
Law  of  Nations,  n.  115.  Oftree,  n.  151.  Original  Juris- 
diction, n.  210.  Owner,  n.  250.  Pardon,  n.  177.  Piracy, 
n.  112.  Post-Offices,  n.  105.  Post-Roads,  n.  106.  Power, 
notes  71,  138.  Preference,  n.  147.  Presentment,  n.  253. 

Private  Property,  n.  258.  Privilege,  notes  140,  221.  Pro- 
ceedings, n.  218.  “ Process  of  Law,”  notes  257,  261.  Pro- 
gress, n.  107.  Promote,  n.  107.  Proper,  n.  138.  Property, 
notes  232,  258.  Provide  and  Maintain,  n.  128.  Punisa,  n. 

111.  Punishment,  n.  217.  Qualifications,  n.  16.  Quarter, 
n.  250.  “ Raise  and  Support,”  n.  123.  Ratification,  n.  243. 

Records,  n.  218.  Regulate,  n.  85.  Religion,  n.  245.  Re- 
ligious Test,  n.  242.  Reprieve,  n.  177.  Reprisal,  n.  121. 

Republican  Government,  n.  233.  Returns,  n.  45.  Reve- 
nue, n.  65.  Rules,  n.  47.  Science,  n.  107.  Securing, 
n.  107.  Soldier,  n.  250.  Standard,  n.  101.  State,  n.  229. 

Supreme  Law,  n.  240.  Taxes,  notes  22,  72.  Territory, 
n.  231.  Ton,  n.  102.  Tonnage,  n.  163.  Treason,  n.  215. 

Treaty,  notes  178,  240.  Trial,  n.  212.  Tribunal,  n.  109. 

Troops,  n.  164.  “Two-thirds,”  n.  68.  Uniform,  n.  81. 

United  States  of  America,  n.  13.  “Vessels  Bound,”  n. 

148.  Veto,  n.  67.  Vice-President,  n.  36.  War,  n.  117. 

Warrant,  n.  252.  “We  the  People,”  n.  6.  “Weights  and 
Measures,”  n.  102.  “Yeas  and  Nays,”  n.  51. 

Dekagram.  A measure  of  weight,  n.  102,  p.  118,  § 2. 

Dekaliter.  A measure  of  capacity,  n.  102,  p.  118,  § 2. 

Dekametkr.  A measure  oflength.  n.  102,  p.  117,  § 2. 

Delaware.  Declared  Independence,  p.  7.  Entered  into  Articles  of 
Confederation,  pp.  9,  21.  Qualification  for  suffrage  in,  n. 

17,  p.  60.  One  representative,  pp.  23,  67,  68,  n.  24.  Num- 
ber of  inhabitants  through  each  decade,  n.  24,  pp.  68-71. 

Assigned  to  a circuit,  n.  19S.  Rejected  the  13th  and  14th 
Amendments,  n.  274,  275. 

Delaware.  Entitled  to  one  representative  in  first  Congress 1 2 8 23,67 

Delegated.  The  powers  not  delegated  to  the  United  "States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States,  respectively,  or  to  the  people. 

Amendments 10  45, 269 

Delegated  defined,  n.  269.  Copied  from  the  Confedera- 
tion, n.  269.  See  also  p.  9. 

Delegates.  How  chosen  under  the  Articles  of  Confederation. 

Art.  V.  p.  11.  Freedom  of  speech  and  power  of  arrest 
secured,  Id. 

Delegates  or  members  of  State  legislatures  shall  bo  bound 

by  oath  or  affirmation  to  support  this  Constitution 6 8 41,250 

The  reason  of  this  oath,  and  the  test  oath,  n.  242.  Per- 
sons who  had  taken  this  oath  and  engaged  in  rebellion, 
disqualified  for  office,  14th  amendment.  The  same  class 


INDEX. 


529 


Art. 

disfranchised  in  certain  elections,  n.  276,  p.  284,  § 1.  The 
act  explained,  Id.  § 6.  This  disqualification  discussed, 
n.  281.  To  the  conventions  to  frame  reconstructed  consti- 
tutions, qualifications  of,  n.  276,  p.  283,  § 5.  How  to  be 
elected  and  to  frame  a State  Constitution,  Id. 

Delivered  up.  Fugitives  from  justice  to-be  delivered  up  to 

be  removed  to  the  State  having  jurisdiction  of  the  crime.  4 
The  precept  of  the  governor  protects  the  person  who 
receives  the  fugitive,  n.  223.  The  courts  cannot  go  be- 
hind the  warrant,  n.  223. 

Delivered  up.  Persons  held  to  service  or  labor  in  one  State, 
escaping  into  another,  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  service  or  labor  may  be  due . . 4 

This  contemplates  a summary  proceeding,  n.  228.  The 
clause  is  in  effect  a treaty  of  rendition,  Id.  The  fugitive 
slave  laws  were  constitutional,  Id.  Copied  from  the 
Confederation,  Art.  VI.  p.  10. 

Demand.  A fugitive  from  justice  shall,  on  demand  of  the  ex- 
ecutive authority  of  the  State  from  which  he  fled,  be  de- 
livered up  to  be  removed  to  the  State  having  jurisdiction 

of  the  crime 4 

Person  is  taken  in  its  largest  sense,  and  means  non-resi- 
dents as  well  as  residents,  n.  223.  The  fugitive  may  be 
arrested  and  detained  until  demand,  Id.  The  executive 
upon  whom  the  demand  is  made  cannot  go  behind  it,  Id. 

This  duty  is  ministerial,  Id.  The  governor’s  warrant  on 
demand,  Id.  Copied  from  the  Confederation,  Art.  VI., 

p.  10. 

Denizens  of  acquired  soil  become  citizens,  n.  19.  Ho  middle 
class  of,  in  the  United  States,  n.  169. 

Department  of  the  government.  Congress  shall  have  power 
to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  govern- 
ment of  the  United  States,  or  in  any  department  or  office 


thereof 1 

This  power  defined  and  discussed,  n.  138. 

Departments.  The  President  maj^require  the  opinion,  in  writing, 
of  the  principal  officer  in  each  of  the  executive  depart- 
ments  2 

These  opinions  how  given,  n.  176.  The  departments 
enumerated,  Id. 

Departments.  The  Congress  may  by  law  vest  the  appointment  of 
such  inferior  officers  as  they  think  proper  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. . 2 

(See  note  183.) 

Deprived.  No  State  without  its  consent  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5 

Devolve.  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve 
on  the  Vice-President 2 


The  law  regulating  the  subject,  n.  172.  A list  of  the 
Vice-Presidents  upon  whom  the  presidency  has  devolved, 
n.  172,  p.  170. 

Dickinson,  John.  Deputy  from  Delaware.  Signed  the  Articles  of 
Confederation,  p.  21 ; signed  this  Constitution,  p.  42. 

Direct  tax.  Representatives  and  direct  taxes  to  be  apportioned 
among  the  States  according  to  their  respective  numbers, 

&c.  (S Representatives.) 1 

Direct  taxes  defined,  n.  22.  Must  be  laid  by  rule  of  ap- 
portionment, Id.  notes  81,  144.  How  apportioned,  n.  23. 

“ Numbers  ” defined  and  discussed,  n.  24.  Population  in 
different  decades,  Id.  pp.  70-71. 

Direct  tax.  No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 

directed  to  be  taken 1 

“ Capitation  ” defined,  n.  144.  Principles  on  which  the 


sec.  cl. 


2 2 


2 3 


2 2 


8 18 
2 1 

2 2 

1 5 

2 3 

9 4 


pp. 


38, 229 


39, 232 


38,229 


30, 138 
35, 171 

35,174 

40,246 

34,  69 

23,  61 
81,149 


530 


INDEX, 


government  suppressed  the  rebellion,  Id.  general  Jackson 
on  nullification,  Id.  “ Census”  defined,  n.  145. 

Discharged  from  service  or  labor.  No  person  held  to  service  or 
labor  in  one  State  shall  be  discharged  from  such  service  or 
labor  in  another 

Disciplining  the  militia.  Congress  shall  have  power  to  provide 
for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  States  re- 
spectively the  appointment  of  the  officers,  and  the  author- 
ity of  training  the  militia  according  to  the  discipline 

prescribed  by  Congress 

The  full  meaning  of  “ organizing,  arming,”  &c.,  n.  134. 
Decisions  on  the  constitutionality  of  conscription,  Id. 
n.  118,  p.  129. 

Discoveries.  Exclusive  right  to  discoveries  may  be  secured  by 

inventors  for  a limited  time 

Copyrights  and  patents  discussed,  n.  107,  pp.  122, 123. 

Disfranchisement  of  a citizen  not  an  unusual  punishment,  n. 
267,  p.  268.  Certain  officers  who  had  engaged  in  the  rebel- 
lion disfranchised,  n.  276,  p.  283,  § 5. 

Disorderly  behavior.  Each  house  may  punish  its  members  for 

disorderly  behavior  

Power  of  Congress  as  to  contempts,  n.  48.  Sam  Hous- 
ton’s case,  Id.  Legitimate  grounds  of  expulsion,  Id.  p.  87. 
Rebel  senators  expelled,  n.  50. 

Disparage  defined,  n.  258. 

Disputes  between  States.  How  settled  under  the  Confederation, 
Art.  IX.  p.  14. 

Disqualification.  Judgment  on  impeachment  a disqualification 
to  hold  and  enjoy  any  office,  &c.,  under  the  United  States. . 

Judgment  on  impeachment  cannot  be  short  of  removal 
from  office,  n.  40.  Usage  in  England,  Id.  Does  not  affect 
his  person.  Id  Civil  officers  liable  to  impeachment,  n.  191. 
Impeachment  by  the  common  law  defined,  Id.  Report  of 
Committee  on  Impeachment  of  President  Johnson,  with 
precedents  cited,  n.  194,  p.  188.  (See  14  cl.  am’dt,  p.  279.) 

District  not  exceeding  ten  miles  square.  Congress  shall  have 
power  to  exercise  exclusive  legislation  in  all  cases  whatso- 
ever over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  cession  of  particular  States  and  the  acceptance 
of  Congress,  become  the  seat  of  the  government  of  the 

United  States 

Cession  of  the  District  of  Columbia,  n.  136.  This  power 
includes  taxation,  n.  137.  Carries  with  it  right  of  exclusive 
jurisdiction,  Id.  No  action  can  be  taken  in  any  case  in 
the  ceded  district,  after  cession,  by  the  State  ceding,  Id. 
p.  138. 

District.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  a speedy  and  public  trial  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously 
ascertained  by  law.  Amendments 

Divided.  The  Vice-President  shall  have  no  vote  unless  the  Senate 

be  equally  divided 

“ Vice-President”  and  his  powers  discussed,  n.  36. 

Divine  Providence.  Firm  reliance  on,  by  signers  of  the  Dec.  of 
Ind.  p.  7. 

Dock- yards.  &c.  Congress  shall  have  power  to  exercise  exclusive 

legislation  over  dock-yards 

This  power  carries  with  it  right  of  exclusive  jurisdiction, 
n.  136.  Limitation  of  this  power,  Id. 

Domestic  violence.  The  United  States  shall,  on  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature 
cannot  be  convened),  protect  each  State  against  domestic 

violence 

This  subject  discussed  and  explained  by  history,  notes 
284,  m 


Art.  sec.  cL 


4 2 3 


1 8 16 


18  8 


15  2 


13  7 


1 8 17 


6 

13  4 


1 8 17 


4 4 


pp. 

39, 282 

29, 185 
29,121 

26,86 

$5,82 


80,186 


44,263 
24, 77 

80,136 


89,242 


INDEX, 


531 


Art. 

Drayton,  William  Henry,  of  South  # Carolina.  Signed  Articles 
of  Confederation,  p.  21. 

Duane,  James,  of  New  York.  Signed  Articles  of  Confederation, 

p.  21. 

Duer,  William,  of  New  York.  Signed  Articles  of  Confederation, 
p.  21. 

During  good  behavior.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  be- 


havior   3 

Good  behavior  defined,  n.  197.  J udges  impeachable  for 
want  of,  n.  194. 

Duties.  Congress  shall  have  power  to  lay  duties 1 

Duties.  All  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States. 1 

Must  be  laid  by  rule  of  uniformity , n.  22.  Defined, 
n.  75.  Extent  of  the  power,  n.  73. 

Duties.  No  preference  shall  be  given  by  any  regulation  of  com- 


merce or  revenue  to  the  ports  of  one  State  over  those  of 
another ; nor  shall  vessels  bound  to  or  from  one  State  be 

obliged  to  enter,  clear,  or  pay  duties  in  another 1 

Exports  to  be  free  from  all  duty,  n.  146.  “ Preference” 
defined,  n.  147.  Extent  of  this  inhibition  to  States,  Id. 

The  coasting  trade  encouraged,  n.  14S. 

Duties  on  imports.  No  State  shall,  without  the  consent  of  the 
Congress,  lay  any  imposts  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  exe- 
cuting Its  inspection  laws:  and  the  net  produce  of  all 
duties  and  imposts  laid  by  any  State  on  imports  or  exports 
shall  be  for  the  use  of  the  Treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  the  revision  and  con- 
trol of  the  Congress 1 

Defined,  n.  162.  Extent  of  the  necessity,  Id.  p.  162. 
Inspection  laws  defined,  p.  162. 

Duties.  In  case  of  the  death,  removal,  resignation,  or  inability  of 
the  President  to  discharge  the  powers  and  duties  of  that 
office,  the  same  shall  devolve  on  the  Vice-President,  &c..  2 

Act  of  Congress  for  filling  vacancies,  n.  172.  (See  Va- 
cancies.) 

Duties.  The  President  may  require  the  opinion,  in  writing,  of  the 
principal  officer  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of  their  respective 


♦ offices 2 

How  the  “opinions”  are  delivered,  n.  176.  Various 
departments,  Id.  Jefferson’s  opinion  on  this  subject, 

Id. 

Duty  or  tax  might  have  been  imposed  on  imported  persons  (or 

slaves)  up  to  1808  ..' 1 

“Persons”  defined  and  discussed,  n.  139. 

Duty.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 

State 1 

No  duty  on  exports,  n.  146.  (See  Duties.) 

Duty  of  tonnage.  No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  duty  of  tonnage 1 

A duty  on  imports  and  tonnage  defined,  notes  162, 163. 

“ Tonnage  ” defined,  Id. 


Ecclesiastical  Establishments,  National,  prohibited,  n.  245. 

Effect  of  proceedings  of  States.  Congress  may,  by  general 
laws,  prescribe  the  effect  of  the  public  acts,  records,  and 

proceedings  of  States 4 

Effects.  The  right  of  the  people  to  be  secure  in  their  effects 
against  unreasonable  searches  and  seizures  shall  not  be 

violated.  Amendments 4 

Elected.  Representatives  in  Congress  shall  be  chosen  or  elected 

every  second  year  by  the  people  of  the  several  States  ....  1 

“ People  of  the  several  States”  defined,  n.  16.  Negroes 
not  of  “ the  people,”  Id.  Qualifications  of  representatives, 

Id.  Qualifications  in  the  several  States,  n.  17,  pp.  60-65. 


sec.  cl. 


1 

8 1 
8 1 

9 6 


10  2 

1 5 

2 1 

9 1 

9 5 

10  8 

1 

2 1 


36, 198 

28,94 

28,94 

31, 150 


32,161 
34, 169 

35, 171 

30, 140 
34,150 
32,167 


38,  213 

44, 257 
22, 58 


532 


INDEX, 


» 


Art  sec.  cl. 

• Citizenship  does  not  necessarily  confer  the  suffrage,  n.  18. 

The  right  of  suffrage  defined,  Id. 

Elected.  Two  senators  from  each  State  shall  be  chosen  (or 

elected)  by  the  legislature  thereof,  for  six  years . . . 1 3 1 

* Why  two  from  each  State,  n.  28.  Why  elected  by  the 
legislature,  Id.  Mode  of  election,  Id.  Hamilton’s  opin- 
ion, Id.  General  usage,  n.  29.  Cameron’s,  Harlan’s,  and 
Stockton’s  cases,  Id.  Act  of  Congress  with  regard  to 
elections,  n.  30.  In  case  of  a vacancy,  Id.  p.  76.  The 
election  certified,  Id. 

Election.  When  vacancies  happen  in  the  representation  from  a 
State,  the  executive  thereof  shall  issue  writs  of  election 

to  fill  them 12  4 

Basis  of  action  of  the  executive,  n.  25.  Incompatible 
offices  cause  a vacancy,  Id.  How  vacancies  are  created,  Id. 

Election  of  senators  prescribed  by  statute;  the  act,  n.  76. 

Election  of  President  and  Yice-President  United  States.  The 
President  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice-President,  chosen  for 

the  same  term,  be  elected  as  follows : 2 1 1 

List  of  Presidents,  n.  166.  Electors  defined,  n.  107. 

Number  of  electors,  Id.  Qualifications  of  Vice-President, 

1685.  (See  pp.  163-169.) 

Election.  President  and  Vice-President  United  States: — 

Each  State  shall  appoint,  in  such  manner  as  the  legisla- 
ture thereof  may  direct,  a number  of  electors  equal  to  the 
whole  number  of  senators  and  representatives  to  which  the 
State  may  be  entitled  in  the  Congress ; but  no  senator  or 
representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an 

elector 2 1 2 

Electors  defined,  n.  107.  Number  of  electors,  Id. 

The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves.  They  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and,  in  distinct  ballots, 
the  person  voted  for  as  Vice-President:  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each;  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government  of 
the  United  States,  directed  to  the  President  of  the  Senate. 

The  President  of  the  Senate  shall,  in  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certi- 
ficates, and  the  votes  shall  then  be  counted : the  person 
having  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a majority  of  the 
whole  number  of  electors  appointed;  and  if  no  person  have 
such  majority,  then,  from  the  persons  having  the  highest 
numbers,  not  exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall 
choose,  immediately,  by  ballot,  the  President.  But,  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote:  a 
quorum  for  this  purpose  shall  consist  of  a member  or 
members  from  two-thirds  of  the  States,  and  a majority  of 
all  the  States  shall  be  necessary  to  a choice.  And  if  the 
House  of  Representatives  shall  not  choose  a President, 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next,  following,  then  the 
Vice-President  shall  act  as  President,  as  in  the  case  of  the 
death,  or  other  constitutional  disability  of  the  President. 

Amendments  * . 12  1 

The  person  having  the  greatest  number  of  votes  as 
Vice-President  shall  be  the  Vice-President,  if  such  num- 
ber be  a majority  of  the  whole  number  of  electors  ap- 
pointed; and  if  no  person  have  a majority,  then  from  the 


PP. 
24, 74 


23,  72 


32,162 


82, 164 


46,164 


INDEX, 


533 


Art.  sec.  cl. 


two  highest  numbers  on  the  list  the  Senate  shall  choose 
the  Vice-President : a quorum  for  the  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a 

choice.  Amendments 12  2 

But  no  person  constitutionally  ineligible  to  the  office  of 
President,  shall  be  eligible  to  that  of  Vice-President  of 

the  United  States.  Amendments 12  3 

Congress  may  determine  the  time  of  choosing  the  elect- 
ors, and  the  day  on  which  they  shall  give  their  votes; 
which  day  shall  be  the  same  throughout  the  United  States  .214 


In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-President,  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President,  and  such  officer  shall  act  ac- 
cordingly, until  the  disability  be  removed,  or  a President 
shall  be  elected 2 1 5 

Elections.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof,  but  the  Congress  may,  at 
any  time,  by  law  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 1 4 1 

The  power  of  the  governor  of  the  State  Over,  n.  41. 

Meaning  of  u time,  place,  and  manner,11  Id.  and  n.  46.  The 
question  of  the  power  of  Congress,  with  regard  to,  n.  241. 

Elections.  Each  house  shall  be  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members 15  1 

“ Elections,  returns,  and  qualifications 11  defined,  notes  44, 

45, 46.  A test  oath  necessitated  by  the  rebellion,  notes  46,  242. 

Argumehts  pro  and  contra  the  disqualifications  of  partici- 
pants in  the  rebellion,  n.  46. 

Elective  franchise.  How  it  is  given  and  differs  in  all  the  States, 
notes  16,  IT,  18.  It  is  a power,  not  a right,  n.  18.  “ Under 
the  control  of  the  States,11  n.  41.  Doubts  thrown  upon 
this,  n.  17,  “Nebraska,11  n.  274.  When  the  constitu- 
tions shall  make  no  distinction  on  account  of  color  in  the 
elective  franchise,  notes  276,  283,  § 5.  The  right  of  the  States 
to  determine  under  the  14th  amendment  still  seems  to  be 
left  unimpaired,  n.  2S0. 

Elector.  No  senator  or  representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be 


appointed  an  elector  of  President  or  Vice-President  of  the 

United  States 2 1 .2 

Electors.  The  qualifications  of  electors  of  representatives  in 
Congress  to  be  the  same  as  for  electors  of  the  most  nume- 
rous branch  of  the  State  legislature 1 2 1 


The  subject  logically  considered,  n.  16,  pp.  59,  60.  The 
qualifications  of  electors  in  each  State,  n.  17,  pp.  60-64. 

No  uniformity  except  as  to  males,  and  the  age  of  21  years ; 
the  necessity  of  uniformity  considered,  n.  17,  pp  64-65. 

The  right  of  the  States  to  define  claimed,  notes  41,  244,  274, 
p.  283.  Qualification  of,  in  rebel  States  on  the  reconstruc- 
tion measures,  without  distinction  of  color,  excluding 
those  rebels  who  had  held  certain  offices,  n.  276,  pp.  283, 

288,  § 5,  6.  Of  delegates  to  the  reconstruction  conventions. 

For  officers  under  the  provisional  governments,  n.  276, 
p.  283,  § 6.  To  be  registered  and  how,  n.  276  (supplement- 
ary act),  p.  284,  § 1.  Approval  of  the  qualified,  Id.  § 6. 
Boards  of  registration  to  ascertain  the  qualifications  of 
electors,  n.  276,  p.  287,  § 5.  The  disqualification  explained, 

Id.  § 6. 

Electors  of  President  and  Vice-President  of  the  United  States. 

Appointment,  qualification,  time  of  choosing,  and  duties  of  , o 

electors.  Amendments < ^ 

Electors  defined  and  discussed,  n.  167.  Choice  of  the  electors  " c 


. PP. 

47,166 

47.166 

34. 167 


34, 169 

25.83 

25.84 


32,164 

22,58 


82.164 

46. 164 


534 


INDEX, 


Art.  sec. 

a point  of  issue,  Id.  Numbers  and  apportionment  of  the 
electors,  Id.  When  they  meet,  n.  166.  Compared  with 
electors  for  legislators  and  members  of  Congress,  notes  IT, 

18,  167.  Of  delegates  in  Congress  for  only  three  years 
under  the  Confederation,  Art.  V.  p.  11. 

Eligibility  of  a representative  in  Congress.  No  person  shall  be 
a representative  who  shall  not  have  attained  to  the  age  of 
twenty-live  years,  and  been  seven  years  a citizen  of  the 
United  States,  and  who  shall  not  when  elected  be  an  in- 
habitant of  that  State  in  which  he  shall  be  chosen 1 2 

“Person11  defined,  n.  19.  Citizens  and  persons  not  the 
same,  notes  IT,  18,  19,  220,  2T4  The  person  must  be  an 
inhabitant  of  the  State,  n.  19.  Qualifications  may  be  super- 
added,  notes  46,  242. 

Eligibility  of  a senator  in  Congress.  No  person  shall  be  a sen- 
ator who  shall  not  have  attained  to  the  age  of  thirty  years, 
and  been  nine  years  a citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that  State 

for  which  he  shall  be  chosen 1 3 

Person  defined  as  in  note  19,  n.  35.  Shields  rejected  for 
want  of,  n.  85.  Qualifications  compared,  notes  *46,  169,  p. 

188.  Have  been  superadded  by  test  oath,  notes  46,  242. 

Eligibility  of  electors  of  President  and  Vice-President  of  the 
United  States.  No  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States, 

shall  be  appointed  an  elector 2 1 

(See  note  16T.)  No  person  eligible  to  office  under  the 
federal  government  who  cannot  take  the  test  oath,  n.  242. 

Nor  to  practice  as  attorney,  n.  242.  This  unconstitutional, 
as  to  those  already  having  the  right,  n.  143,  p.  148,  n.  242. 

Eligibility  of  the  President  of  the  United  States.  No  person, 
except  a natural  born  citizen,  or  a citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President ; neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have 
attained  to  the  age  of  thirty -five  years,  and  been  fourteen 

years  a resident  within  the  United  States 2 1 

A natural  born  citizen  defined  (See  Citizen),  notes  IT, 

18,  169,  2T4.  Every  person  born  in  the  country  is,  at  the 
moment  of  birth,  prima  facie  a citizen,  n.  169.  Few  of 
the  foreign  born  at  the  time  of  the  adoption  of  the  Consti- 
tution now  eligible,  n.  1T0.  Those  born  upon  purchased 
or  annexed  soil,  not  eligible,  n.  1T9.  The  President  must 
be  a man,  n.  1 70.  Age  cannot  be  dispensed  with,  n.  1T1. 

Residence  defined,  n.  1T1. 

Eligibility  of  the  Vice-President  of  the  United  States.  No  per- 
son constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United 
States.  Amendments 12  2 

Eligibility  of  delegates  in  the  conventions  of  the  rebel  States, 
n.  2(6,  p.  283,  § 5. 

Ellery,  William.  Delegate  from  Rhode  Island.  Signed  Dec. 
of  Ind.  p.  T ; and  the  Articles  of  Confederation,  p.  21. 

Eminent  domain.  All  contracts  are  subject  to  the  right  of  eminent 
domain  of  the  State,  n.  15T,  p.  157.  The  States  must  not 
infract  the  national  right  of,  n.  89.  May  be  taken  for  pub- 
lic use,  n.  258. 

Emolument.  No  person  holding  any  office  of  profit  or  trust 
under  the  United  States,  shall,  without  the  consent  of 
Congress,  accept  of  any  present,  emolument,  office,  or  title 
of  any  kind  whatever  from  any  king,  prince,  or  foreign  State  1 9 

Office  defined,  n.  151.  Does  not  extend  to  private 
citizens,  n.  151,  p.  159.  The  acceptance  of  an  incompatible 
office  vacates  the  other,  notes  62,  63. 

Emolument  of  the  President  of  the  United  States.  The  President 
shall  receive  a stated  compensation,  but  no  other  emolu- 
ment from  the  United  States,  or  either  of  them 2 1 

Fixed  at  $25,000  per  annum,  n.  173. 


cL 


2 


3 


2 


4 


8 


6 


pp. 


23, 66 


24,  TT 


82,164 


34,167 


47, 166 


81, 152 


84,170 


INDEX. 


535 


Art. 

Emoluments.  No  senator  or  representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 

have  been  increased,  during  such  time 1 

(See  Eligibility , notes,  19,  35,  46,  169,  242.) 

Enabling  acts.  Some  States  admitted  by  and  some  without,  n.  230. 

The  effect  of  Constitution  and  admission  is  to  annul  them, 
n.  230 

Enemies.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 

giving  them  aid  and  comfort 3 

Treason  defined,  and  its  origin,  n.  215.  The  enemies 
are  those  who  levy  war.  Id. 

Engagements  entered  into.  All  debts  contracted  or  engagements 
entered  into  before  the  adoption  of  this  Constitution  shall 
be  as  valid  against  the  United  States  under  this  Constitu- 
tion as  under  the  Confederation 6 

This  clause  apd  its  reason  considered,  n.  237. 

English  laws.  For  abolishing  the  free  system  of,  p.  4. 

Ensure  domestic  tranquillity.  The  Constitution  established  in 

order  to  insure  domestic  tranquillity,  &c.  Preamble 

Means  peace  among  and  between  the  States,  n.  9.  (See 


Instil' e.) 

Enter.  Vessels  bound  to  or  from  one  State  shall  not  be  obliged 

to  enter,  clear,  or  pay  duties  in  another 1 

Pilotage  fees  not  unconstitutional,  n.  148.  Port  dues  for 
the  benefit  of  a State,  unconstitutional,  n.  162. 

Enter.  No  State  shall  enter  into  any  treaty,  alliance,  or  confeder- 
ation  1 

Because  this  is  a national  power,  n.  152. 

Enter.  No  State  shall,  without  the  consent  of  Congress,  enter 
into  any  agreement  or  compact  with  another  State,  or  with 
a foreign  power 1 


The  words  were  used  in  their  broadest  sense,  and  to  cut 
off  negotiations  with  foreign  nations,  n.  164. 

Entitled.  The  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several 

States '. 4 

(See  Citizens, , notes  17,  18,  93,  169,  220,  221,  274.) 

The  citizen  going  into  another  State  is  entitled  to  all  the 
privileges,  &c.,  of  the  other  citizens  of  that  State,  and  no 
more,  n.  222. 

Enumerated  Powers.  The  specially  granted  powers  were  not 
numbered  in  the  Constitution,  but  the  numerals  have  been 
prefixed  by  authors  for  convenience,  n.  74,  p.  51. 

(See  Numeration , n.  268.) 

Enumeration  of  the  people  to  be  made  within  three  years  after 
first  meeting  of  Congress,  and  every  ten  years  thereafter, 

in  such  manner  as  they  shall  by  law  direct  1 

Tables  of  the  numbers  according  to  the  several  enumer- 
ations, n.  24,  pp.  68-71. 

Enumeration.  No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein- 
before directed  to  be  taken 1 

Capitation  defined,  n.  144.  Taxes  on  lands  are  direct 
taxes,  n.  144.  They  must  be  by  the  rule  of  apportionment, 
notes  22, 72,  77,  81,  85,  144. 

Enumeration  of  rights.  The  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dis- 
parage others  retained* by  the  people.  Amendments 9 

(See  Enumerated  Powers , n.  74.)  Enumeration  defined, 
n.  258.  Of  certain  rights  defined,  n.  268.  Deny  and  dis- 
parage defined,  Id. 

Equal  suffrage.  No  State,  without  its  consent,  shall  be  deprived 

of  its  equal  suffrage  in  the  Senate 5 

Equal  in  no  two  States,  notes  17, 18.  Made  equal  in 

39 


sec.  cl. 


6 2 


3 1 


9 6 

10  1 
10  2 


2 1 


2 3 


9 4 


pp. 

27,90 

38,211 

40,  247 
22,53 
31,150 
31,153 
32, 161 

38,  222 


S3, 07 


St,  143 


45,  263 


40,  246 


536 


INDEX. 


Art.  sec.  cL 

the  rebel  States  without  regard  to  color,  n.  276.  (The  re- 
construction acts.) 

Equity.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made  or  which  shall  be  made 

under  their  authority 3 2 1 

Cases  in  equity  defined,  n.  200.  There  must  be  no  ade- 
quate remedy  at  law,  n.  200. 

Equity.  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

State.  Amendments .* 11 

This  amends  the  first  section  of  the  third  article  so  as  to 
prevent  suits  against  the  States,  notes  205a,  270. 

Escaping.  Persons  held  to  service  or  labor  (or  slaves),  escaping 
into  another  State,  shall  be  delivered  up  on.  claim  of  the 

party  to  whom  such  service  or  labor  may  be  due 4 2 3 

Persons  and  State  defined,  n.  226.  Escaping  defined 
and  distinguished  from  carrying  by  the  master,  notes  • 

*222,  227.  The  owner’s  rights,  n.  222.  Delivered  up  con- 
templates a summary  remedy,  n.  228.  This  clause  is  a 
treaty,  Id. 

Establish.  Cited  whenever  used  in  the  Constitution,  n.  104. 

Establish.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish  3 1 

This  clause  discussed,  notes  195-197.  To  establish  is 
to  put  into  operation,  notes  12,  13,  243.  See  the  word 
on  the  text  to  notes  293-296;  and  Establishment , 
notes  242-245. 

Establish  justice.  The  Constitution  formed  in  order  to  establish 

justice,  &c.  Preamble 

Justice  defined  and  how  established,  n.  8. 

Establishment  of  the  Constitution.  We,  the  people  of  the 
United  States,  in  order  to  form  a more  perfect  union,  es- 
tablish justice,  insure  domestic  tranquillity,  provide  for 
the  common  defense,  promote  the  general  welfare,  and  se- 
cure the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution  for  the 

United  States  <>f  America.  Preamble 

This  preamble,  why  consulted,  and  its  divisions,  n.  5. 

The  difference  from  the  Confederate  Constitution,  n.  5. 

“The  people”  defined,  n.  6.  A more  perfect  union,  n.  7. 

Justice  defined.  Every  term  defined,  notes  6-13.  A gov- 
ernment was  established,  1,  4,  S. 

Establishment  of  this  Constitution.  The  ratification  of  the  Con- 


ventions of  nine  States  shall  be  sufficient  for  the  establish- 
ment of  this  Constitution  between  the  States  so  ratifying 

the  same 7 

How,  when,  and  by  what  States  the  Constitution  was 
ratified  and  established,  notes  242,  243. 

Establishment  of  religion.  Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion.  Amendments 1 

Establishment  here  means  a system  of  religion  or 


established  church,  n.  245.  Religion  defined ; all  religions 
tolerated,  n.  245. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted.  Amend- 


ments  8 

Bail  defined,  n.  266.  What  punishment  is  not  excessive, 
n.  266.  Disfranchisement  is  not  unusual  punishment, 
n.  267. 

Excises.  Congress  sjiall  have  power  to  lay  excises 18  1 

Defined  and  discussed,  n.  77. 

Excises.  All  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States. . .. 18  1 


pp. 


3T,  194 


46,  269 
39, 232 


36,189 

22,53 

22,53 

41,  252 
43, 254 

45,267 

28,94 
28,  94 


INDEX. 


537 


This  unformityin  contradistinction  to  apportionment, 
n.  81. 

Exclusive.  The  admiralty  jurisdiction  is  exclusive,  and  the 
State  assumption  of  it  is  unconstitutional,  n.  203. 

The  power  to  regulate  commerce  is  exclusive,  and 
leaves  no  residuum,  n.  85.  Jurisdiction  of  the  Supreme 
Court  when  exclusive,  n.  210.  And  so  of  courts  under  the 
Constitution,  n.  211.  The  power  of  Congress  over  fugitive 
slaves  was  exclusive,  n.  227. 

Exclusive  rights  to  writings  and  discoveries  in  science  and  the 
useful  arts  may  be  secured  to  authors  and  inventors  for  a 

limited  time 

Copyrights,  how  secured,  n.  107.  Inventors  defined,  n. 
108,  p.  122.  Question  discussed,  n.  108. 

Exclusive  legislation  in  all  cases  whatsoever  shall  be  exercised 
by  Congress  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States  and  the  ac- 
ceptance of  Congress,  become  the  seat  of  the  government 

of  the  United  States 

District  of  Columbia  ceded  to  United  States,  n.  136. 
Limitation  of  this  power,  n.  137. 

Execute.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  in- 
vasions  

Militia  defined,  n.  130.  Limitation  of  the  President’s 
power,  Id.  When  the  militia  become  national,  Id.  Laws 
of  the  Union  defined,  n.  131.  Insurrections,  &c.,  defined, 
n.  132.  Defined,  notes  143, 156.  The  civil  law  definition, 
n.  156. 

Execute.  The  President  is  required  to  take  an  oath  faithfully  to 

execute  the  office  of  President  of  the  United  States 

The  President  alone  required  to  take  this  oath,  n.  174. 
Scope  of  the  term  to  faithfully  execute,  n.  164.  No  one  to 
be  put  to  death  under  the  reconstruction  laws  without  the 
approval  of  the  President,  n.  276,  p.  282,  § 4. 

Executed.  The  President  shall  take  care  that  the  laws  be  faith- 
fully executed 

The  meaning  and  extent  of  this  power,  n.  189. 

Execution  of  the  powers  of  the  government.  Congress  shall  have 
power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers  and 
all  other  powers  vested  by  this  Constitution  in  the  govern- 
ment of  the  United  States,  or  any  department  or  office 
thereof 

Execution.  Before  the  President  enters  upon  the  execution  of 
' his  office,  he  shall  take  the  following  oath  or  affirmation. 
(See  Oath.) 

Executive  appointment  to  office,  whether  or  not  an  executive 
function  disputed,  n.  165 

Executive  authority.  The,  of  any  State  shall  issue  writs  of  elec- 
tion to  fill  vacancies  that  may  happen  in  the  representa- 
tion of  such  State 

The  executive  may  receive  resignations  and  may  fill 
actual  vacancies  without  waiting,  n.  25.  Vacancies,  how 
created,  n.  25. 

Exemplifications  of  office,  books,  &c. ; how  to  be  certified,  n.  219, 
p.  221.  Decisions  on  the  statute,  n.  219. 

Expedient.  The  President  shall,  from  time  to  time,  recommend 
to  Congress  such  measures  as  he  shall  judge  necessary  and 

expedient 

Practice  of  sending  a written  message  to  Congress, 
n.  187. 

Expel  a member.  Either  house  of  Congress  may,  with  the  con- 
currence of  two-thirds,  expel  a member. 

A member  may  be  expelled  for  an  offen  se  contrary  to  no 
statute,  n.  49.  Kebel  senators  expelled,  n;  50. 

Expenditures.  A regular  statement  and  account  of  the  receipts 


Art.  sec. 


1 8 

1 8 
1 8 

2 1 
2 3 

1 8 
2 1 

1 2 

2 8 
1 5 


cl. 


8 


17 


15 


7 


18 

7 


4 


2 


pp. 


29,121 

30, 136 
29,13 

35,170 

36,183 

30, 138 
35,170 

23,72 


36,183 

26,86 


538 


INDEX, 


Art. 

and  expenditures  of  all  public  money  shall  be  published 

from  time  to  time 1 

Variance  of  the  Confederate  States  Constitution,  n.  149. 
Creation  of  court  of  claims;  the  creditor’s  remedy,  Id. 

Exports.  No  duty  or  tax  shall  be  laid  on  articles  exported  from 

any  State 1 

This  wholly  takes  away  the  power  over  exports,  n.  146. 

It  was  stricken  out  of  the  Confederate  Constitution,  n.  146. 

Exports,  &c.  No  State  shall,  without  the  consent  of  Congress, 

lay  any  duty  on  imports  or  exports 1 

(See  note  146.)  The  terms  defined,  notes  65-67.  Im- 
ports, or  duties  on  imports,  defined,  n.  162. 

Ex  post  facto  law.  No  bill  of  attainder  or  ex  post  facto  law  shall 

be  passed 1 

Defined,  notes  143,  156.  Relates  only  to  criminal  law, 
n.  143.  The  Missouri  expurgatory  oath  is  unconstitutional 
n.  143.  Defined  according  to  the  civil  law,  n.  156. 

Ex  post  facto  law.  No  State  shall  pass  any  ex  post  facto  law. . 1 

Ex  post  facto  laws  defined,  notes  143,  156.  Limitation 
of  ex  post  facto  laws,  Id.  Attorney’s  test  oath  and  expur- 
gatory oath  in  Missouri,  not  ex  post  facto  laws,  Id.  (See 
n.  242.) 

Extraordinary  occasions.  The  President  may,  on  extraordinary 
occasions,  convene  both  houses  of  Congress,  or  either 


of  them 2 

This  power  has  been  frequently  exercised,  n.  188. 

Fact  and  law.  The  Supreme  Court  shall  have  appellate  jurisdic- 
tion both  as  to  law  and  fact,  &c 3 

Not  to  grant  new  trials  upon  the  facts  since  the  seventh 
amendment,  notes  211,  263. 

Faith  and  credit,  full,  to  be  given  to  public  acts,  records,  and  pro- 
ceedings of  States,  Ac 4 

(See  Acts , Authentication , Credit , Judicial  Proceed- 
ings, Judgments,  Records.)  That  credit  which  the  State 
itself  gives,  notes  218,  219,  which  exhaust  the  subject. 

Federal  courts.  Can  only  issue  a habeas  corpus  in  aid  of  their 


own  jurisdiction,  n.  141,  p.  141 ; in  all  cases  which  it  would 
reach  at  common  law,  p.  142.  State  courts  cannot  arrest 
their  writs,  n.  141,  p.  143. 

Federal  judges  have  exclusive  jurisdiction  on  habeas  corpus 
when  the  applicant  is  imprisoned  by  authority  of  the 
United  States,  n.  141,  p.  142. 

Felonies.  Congress  shall  have  power  to  define  and  punish  pira- 
cies and  felonies  committed  on  the  high  seas,  and  offenses 

against  the  law  of  nations  1 

To  define,  to  punish,  piracy,  and  felony,  defined,  notes 
110,  111,  112,  113,  192, 193. 194.  The  civil  and  not  the  com- 
mon law  definition  adopted,  n.  113.  Misdemeanor  used  in 
contradistinction  to  felony,  n.  194.  (See  Offenses , n.  194.) 
This  power  under  the  Confederation.  Art.  IX.  p.  14. 


Felony  Members  of  Congress  may  be  arrested  for  felony 1 

The  arrest  may  be  for  any  indictable  offense,  n.  56. 

Felony.  A person  charged  with,  fleeing  from  one  State  to 

another,  to  be  delivered  up  on  demand 4 


A person  means  any  one  who  has  committed  a felony  or 
crime,  n.  233.  The  indictment  is  conclusive  of  this,  n. 

223.  Those  who  have  been  guilty  of  felony  at  common 
law  disfranchised  by  the  reconstruction  laws,  n.  176,  § 5. 

Few,  William.  Deputy  from  Georgia.  Signed  this  Constitution, 
p.  42. 

Field,  Stephen  J.  Associate  Justice  of  the  Supreme  Court, 
n.  197.  p.  192. 

Fillmore.  Millard.  Vice-President,  n 37 ; and  President,  n.  166. 

Finks.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

. Amendments  8 

A fine  of  fifty  dollars  and  three  months’  imprisonment 


see.  cl. 

9 7 

9 5 

10  2 

9 3 

10  1 

3 

2 2 

1 


8 10 


6 1 
2 2 


pp. 

31,151 
31, 150 
32, 161 
31, 146 
31, 153 


3G,  183 

37,  204 

38,  213 


29, 124 

26,  88 
88, 229 


45,267 


IlSTDEX, 


539 


for  violating  the  liquor  law  is  not  excessive,  n.  207.  Dis- 
franchisement is  not  unusual  punishment,  n.  267.  Often 
thousand  dollars  for  disregarding  the  tenure  of  office  law, 
n.  184,  pp.  180,  181,  § 5,  6,  9. 

Fitzpatrick,  Benjamin.  Presiding  officer  of  the  Senate,  n.  88, 

p.  81. 

Fitzsimons,  Thomas.  Deputy  from  Pennsylvania.  Signed  this 
Constitution,  pp.  42,  252. 

Florida.  Qualifications  of  voters  in,  n.  17,  p.  60.  Entitled  to 
one  representative,  n.  24,  p.  69.  Number  of  inhabitants, 
n.  24,  pp.  69,  70.  Did  not  vote  in  Presidential  election  of 
1864,  n.  167.  Assigned  to  fifth  judicial  circuit,  n.  191. 
Inhabitants  made  citizens,  n.  220,' p.  222,  §4.  Admitted 
into  the  Union,  n.  230.  Ratified  13th  amendment,  n.  274, 
and  rejected  14th,  n.  275.  One  of  the  rebel  States,  n.  276, 
p.  282,  § 1.  Government  declared  provisional,  n.  276,  p. 
286,  § 1.  Held  convention  in,  n.  277.  Registered  voters 
in,  n.  278. 

Floyd,  William,  of  New  York.  Signed  the  Dec.  of  Ind.  p.  7. 

Foote,  Solomon.  Presiding  officer  of  the  Senate,  n.  38,  p.  81. 

Foreign  birth.  The  power  of  naturalization  is  only  applicable  to 
persons  of,  n.  274,  p.  276. 

Foreign  coin.  Congress  shall  have  power  to  coin  money,  regulate 

the  value  thereof,  and  of  foreign  coin 

To  coin  money  and  regulate  defined,  notes  97,  98,  99. 
Congress  has  always  exercised  the  power,  n.  100.  As  a 
legal  tender  considered,  notes  82,  84,  97,  155.  First  legal- 
tender  act  was  in  favor  of,  n.  155. 

Foreign  extradition  jurisdiction  is  purely  political,  n.  225. 

Foreign,  jurisdiction,  to  our  Constitution,  Dec.  of  Ind.  p.  4 

Foreign  nations.  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations 

To  regulate  defined,  85.  Commerce,  86.  Commerce 
with  foreign  nations,  between  citizens  of  the  United  States, 
and  citizens  or  subjects  of  foreign  governments,  n.  87 
This  power  is  complete  in  itself,  n.  87,  p.  106. 

Foreign  power.  No  State  shall,  without  the  consent  of  Congress, 
enter  into  any  agreement  or  compact  with  another  State, 

or  with  any  foreign  power 

Agreement  or  compact  defined,  n.  164.  This  prohibi- 
tion is  political,  Id.  It  was  intended  to  cut  off  all  nego- 
tiations and  intercourse  between  the  State  authorities  and 
foreign  nations,  n.  164. 

Foreign  State.  No  title  of  nobility  shall  be  granted  by  the 
United  States,  and  no  person  holding  any  office  of  profit 
or  trust  under  them,  shall,  without  the  consent  of  the 
Congress,  accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king,  prince,  or 

foreign  State 

Office  defined;  does  not  extend  to  private  citizens, 
n.  151. 

Foreign  State.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit,  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments 

This  is  amendatory  of  the  second  section  of  the  third 
article,  notes  205a,  270.  To  prevent  States  being  sued  by 
citizens  or  foreigners,  n.  270. 

Foreign  States,  citizens,  or  subjects.  The  judicial  power  shall 
extend  to  controversies  between  a State,  or  the  citizens 

thereof,  and  foreign  States,  citizens,  or  subjects 

Only  where  the  State  is  plaintiff  or  defendant  in  error, 
205a,  270.  The  history  of  the  subject,  205a.  The  interest 
of  the  State  must  appear  of  record,  205a,  270. 

Forfeiture.  No  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person 
attainted 


Art.  sec.  cl. 


# 


18  5 


18  3 


1 10  8 


19  8 


11 


3 2 1 


3 3 2 


pp. 


29, 114 


28,105 


32, 161 


31,152 


46,269 


37,194 


88, 218 


540 


IXDEX, 


(See  Attainder  aDd  Corruption  of  Blood,  n.  217.)  Felony 
caused  forfeiture  of  lands  or  goods  at  common  law,  n.  113. 
A pardon  does  not  restore  offices  forfeited,  nor  property  nor 
interests  vested  in  others,  n.  177,  p.  174. 

Form  a more  perfect  union.  The  Constitution  established  in  order 

to  farm  a more  perfect  union.  Preamble 

Smrnger  than  the  Articles  of  Confederation,  n.  7. 

Forts,  &c.  Congress  shall  have  power  to  exercise  exclusive  legis- 
lation over  forts,  &c 

This  carries  the  right  to  punish  for  offenses  committed 
within  the,  n.  137. 

Foster,  Lafayette  S.  Presiding  officer  of  the  Senate,  n.  38,  p.  81. 

Franchise,  Elective.  Citizenship  has  no  connection  with  fran- 
chise or  voting,  eligibility  to  office,  or  political  rights,  n. 
275,  p.  275,  notes  16,  18.  Curtailment  of  to  curtail  repre- 
sentation, n.  280.  The  probable  effect  of  this  upon  the 
States,  Id. 

Franklin,  Benjamin.  Deputy  from  Pennsylvania.  Signed  the 
Dec.  of  Ind.  p.  7 ; and  this  Constitution,  pp.  42,  252. 

Franklin,  Jesse.  Presiding  officer  of  the  Senate,  n.  33,  p.  79. 

Free  and  independent  States.  The  thirteen  colonies  declared,  p.  6. 

Free  State.  A well-regulated  militia  being  necessary  to  the  secu- 
rity of  a free  State,  the  right  of  the  people  to  keep  and 

bear  arms  shall  not  be  infringed.  Amendments ... 

This  clause  has  reference  to  a free  government,  n.  249. 

Freedmen.  Laws  for  the  protection  of,  enacted  under  13th 
amendment,  n.  174. 

Freedom  of  speech  and  the  press.  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof ; or  abridging  the  freedom  of  speech 

or  of  the  press.  Amendments 

Freedom  defined,  n.  249.  And  of  the  press,  n.  247.  The 
people  and  right  of  petition  defined,  n.  248. 

Fugitives  from  justice.  A person  charged  in  any  State  with  trea- 
son, felony,  or  other  crime,  who  shall  flee  from  justice,  and 
be  found  in  another  State,  shall,  on  demand  of  the  execu- 
tive authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the 

crime 

Person  defined;  flee  defined,  n.  222.  A.  fugitive  from 
justice  may  be  arrested  and  detained  until  requisition, 
n.  224.  The  duty  of  the  governor,  Id.  The  Supreme  Court 
cannot  force  the  governor,  Id.  The  fugitive  must  be 
claimed  as  such,  and  must  be  one,  n.  224.  Shall  be  deliv- 
ered up  defined,  n.  225.  Sufficient  warrant  to  arrest  a 
fugitive,  Id.  Cannot  be  surrendered  after  acquittal  or 
pardon,  Id. 

Fugitive  slaves.  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be  due. 

Person  defined,  n.  226.  State  extends  to  Territories  and 
District  of  Columbia,  n.  226.  Escape  defined,  n.  227.  Ap- 
prentices included,  Id.  The  President  could  cause  the 
delivery  of  fugitive  slaves  among  the  Indian  tribes,  Id. 
The  owner's  power  over  the  fugitive,  Id.  The  power  of 
Congress  exclusive  on  the  subject,  n.  227,  p.  233.  The 
right  to  reclaim  fugitive  slaves  secured,  Id.  The  delivery 
contemplates  summary  proceedings,  n.  228.  This  clause 
was  a treaty,  Id. 


Art.  sec.  cl. 


1 8 17 


2 


1 


4 


4 2 8 


Gaillard,  John.  Presiding  officer  of  the  Senate,  n.  38,  p.  79. 

Gauging.  Instruments  to  be  procured  for,  n.  102,  p.  117. 

General.  The  highest  grade  in  the  army,  n.  124. 

General  laws.  Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  the  public  acts,  records,  and  judicial  pro- 
ceedings of  States  shall  be  proved,  and  the  effect  thereof. . 4 1 


pp. 

22,53 

30,136 


43,256 

9 

43, 254 
38, 229 


39,232 


88,213 


IXDEX, 


541 


Art  sec. 

The  several  acts  and  decisions  thereon,  which  have  been 
prescribed  under  this  clause,  n.  219. 

General  welfare.  The  Constitution  established  to  promote  the 

general  welfare.  Preamble 

This  clause  defined,  n.  10.  Was  stricken  out  of  the  Con- 
federate Constitution,  n.  5. 

General  welfare.  Congress  shall  have  power  to  provide  for  the 

general  welfare 1 8 

Judge  Story’s  reading  of  this  clause,  n.  80.  Mr.  Jeffer- 
son’s construction,  n.  80. 

Georgia.  Signed  the  Dec.  of  Ind.  p.  8;  the  Articles  of  Con- 
federation, pp.  9,  21 ; and  the  Constitution  of  the  United 
States,  pp.  43, 252.  Qualifications  for  voters  in,  n.  17,  p.  60. 

Georgia.  Entitled  to  three  representatives  in  the  first  Congre4s.  1 2 

Seven  representatives  by  the  census  of  1860.  n.  24,  p.  69. 
Population  through  each  decade,  n.  24.  pp.  69,  70.  Did  not 
vote  in  the  presidential  election  of  1864,  n.  167.  Assigned 
to  fifth  judicial  circuit,  n.  197,  p.  192.  Ceded  Alabama  and 
Mississippi,  notes  230,  231,  232.  Katified  the  13th  consti- 
tutional amendment,  n.  274,  and  rejected  the  14th,  n.  275. 

Declared  one  of  the  rebel  States,  n.276,  p.  232.  Civil  gov- 
ernment subject  to  military  control,  n.  274,  p.  286,  § 1. 

Held  convention,  277.  Registered  voters  in.  Id. 

Gerry,  Elbridge,  of  Mass.  Signed  the  Dec.  of  Ind.,  p.  7 ; and 
Articles  of  Confederation,  p.  21.  Vice-President,  n.  37. 

Gilman,  Nicholas.  Deputy  from  New  Hampshire.  Signed  this 
Constitution,  pp.  42,  252. 

God,  Almighty.  (See  Almighty  God , n.  5.) 

God,  the  act  of,  not  to  affect  the  termination  of  services,  n.  274. 

Gold  and  silver  coin.  No  State  shall  make  anything  but  gold  and 

silver  coin  a tender  in  payment  of  debts 1 10 

Remark  upon  this,  n.  152.  But  Congress  may  make 
paper  a legal  tender,  notes  83,  97,  98,  99,  100,  155.  This 
denied,  notes  97-100.  Examples  of  paper  legal  tenders, 
n.  83.  The  first  legal-tender  act  was  in  favor  of  foreign 
coin,  n.  155. 

Good  behavior.  The  judges,  both  of  the  Supreme  and  inferior 

courts,  shall  hold  their  offices  during  good  behavior 3 1 

That  is  for  life  or  until  impeachment,  notes  191, 192, 193, 

194,  197.  The  precedents  of  impeachment  for  want  o^ 
n.  194. 

Gorham,  Nathaniel,  of  Mass.  Signed  the  Constitution,  pp.41,  252. 

Governing  the  militia.  Congress  shall  have  power  to  provide  for 
governing  such  part  of  the  militia  as  may  be  employed  in 

the  service  of  the  United  States 1 8 

This  power  defined,  n.  134.  Power  of  the  President 
over,  notes  134,  135. 

Government.  The  Constitution  created  a,  not  a mere  compact, 

Pref.  p.  viii.  notes  2,  4.  Cannot  take  the  rights  of  the 
citizen  away,  except  by  due  course  of  law,  n.  257.  Grand 
juries  hear  the  evidence  of  the  government  only,  n.  233. 

Reasons  for  the  exclusive  in  the  District  of  Columbia, 
n.  136.  How  it  is  changed  by  abolishing  slavery,  n.  274. 

Changes  in  the,  silent  and  conventional,  n.  2S6,  p.  293. 

The  fallacy  that  the  President  is  the  government,  Id.  The 
decisions  and  influence  of  the  judicial  department  of, 

Id.  294.  The  revolutions  which  have  marked  the  history 
will  be  found  where.  Id.  p.  294. 

Government.  Congress  shall  have  power  to  make  rules  for  the 

government  and  regulation  of  the  land  and  naval  forces. . . 1 8 

These  rules,  how  made  and  where  found,  n.  129. 

Government  of  the  United  States.  Congress  shall  have  power  to 
make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government 
of  the  United  States,  or  in  any  department  or  office 

thereof * 1 8 

(See  power  discussed,  notes  71, 128.)  Does  not  mean  abso- 


cL 


1 


3 


1 


1 


16 


14 


J8 


pp. 

22,53 
28, 94 

23,67 


31, 153 


36,189 


29, 135 


29, 133 


30,138 


542 


INDEX, 


Art  sec. 

lutcly  necessary,  n.  138.  This  enlarges,  does  not  limit 
n.  138.  Necessary  discussed,  n.  138.  Calhoun’s  definition, 
n.  228.  Compared  with  other  subjects,  notes  262,  264,  269; 
with  “ appropriate  ” in  the  thirteenth  amendment  n.  274, 
p.  276.  (See  note  46.) 

Government.  Congress  shall  make  no  law  abridging  the  right  of 
the  people  peaceably  to  assemble  and  to  petition  the  gov- 
ernment for  a redress  of  grievances.  Amenuments 1 

The  people  used  in  the  broadest  sense,  n.  248.  The 
right  of  petition  and  the  extent,  to  the  government, 
n.  248. 

Government.  Republican  form  of,  guaranteed.  The  United 
States  shall  guarantee  to  every  State  in  the  Union  a 

republican  form  of  government 4 4 

The  duty  is  on  the  government;  Congress  to  decide 
what  is  the  State  government,  n.  233.  "Guarantee  and 
every  State  defined,  n.  233,  pp.  242.  286.  Republican 
form  of  defined  and  discussed,  n.  248,  p.  243.  No  legal 
State  governments  exist  in  the  ten  rebel  States,  n.  276, 
p.  282,  preamble.  Held  subject  to  the  wiil  of  the  military 
commanders  and  of  Congress,  n.  284,  p.  2S6,  § 1.  Power 
of  the  military  commanders  to  remove  the  officers  of  the 
so-called,  n.  274,  pp.  286,  287,  § 2.  To  remove  all  who  are 
disloyal  to  the  government  of  the  United  States  or 
oppose  reconstruction,  Id.  § 4. 

Government.  Seat  of  government  established 1 8 

Ceded  by  Maryland  and  Virginia,  n.  137. 

Grain.  A weight  of  the  metric  system,  n.  102,  p.  118,  § 2. 

Grand  jury.  No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  or 

indictment  of  a grand  jury,  &c.  Amendments 5 

Slaves  wrere  not  persons  within  the  meaning  of  this 
clause,  n.  253.  Capital,  &c.,  crime  defined,  n.  253.  Pre- 
sentment and  indictment  defined,  Id.  Grand  jury  not  less 
than  twelve  nor  more  than  twenty-three,  n.  253.  Regu- 
lated by  statute,  Id. 

Grant.  No  State  shall  grant  any  title  of  nobility 1 10 

Grant.  The  President  shall  have  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States,  except  in 

cases  of  impeachment 2 2 

Reprieves  and  pardons  defined  and  discussed,  n.  177.  To 
grant  a reprieve  is  to  withdraw  a sentence  of  death  for  a 
time,  n.  177. 

Grant,  Ulysses  S.  General  of  the  United  States  army,  n.  124. 

Granted  powers.  All  legislative  powers  granted  shall  be  vested 

in  a Congress  of  the  United  States 1 1 

Legislative  power  defined,  n.  14.  Congress  defined  and 
discussed,  n.  15.  The  wisdom  of  this  division  of  power, 
n.  15. 

Granting  commissions.  The  President  shall  have  power  to  fill 
up  all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at  the 

end  of  their  next  session 2 2 

This  subject  discussed  and  compared  'with  the  Civil 
Rights  Bill,  n.  185.  How  the  vacancies  may  occur,  Id. 

How  long  these  commissions  last,  n.  186.  Limitation  of  the 
power,  n.  184,  p.  180,  § 3. 

Grants  of  States.  The  judicial  power  shall  extend  to  cases  be- 
tween citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States 8 2 

Grier,  Robert  C.  Associate  Justice  of  the  Supreme  Court,  n. 

197. 

Grievances.  Congress  shall  make  no  law  abridging  the  right  of 
the  people  peaceably  to  assemble  and  to  petition  the  gov- 
ernment for  a redress  of  grievances.  Amendments 1 

Must  be  determined  by  the  power  of  the  government  to 
afford  the  redress,  n.  248. 

trROW,  GaIKjsiia  A.  Speaker  of  the  House,  n.  26,  p.  73. 


cl. 


1 


17 


1 

1 


1 


1 


P> 


43,254 


39,242 


30, 136 
44,258 

31,153 

85,171 

22,58 

36, 182 

87, 1W 
43,254 


INDEX, 


543 


♦ 


Art.  sec.  cl. 

Guaranty.  The  United  States  shall  guaranty  to  every  State  in 

this  Union  a republican  form  of  government 4 4 

Guaranty  defined,  n.  283.  (See  Government.')  Every 
State  extends  alsy  to  inchoate  States,  n.  233. 

Gwinnett,  Button,  of  Georgia.  Signed  the  Dec.  of  Ind.  p.  T. 


Habeas  Corpus.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or 

invasion,  the  public  safety  may  require  it 

Privilege  defined,  n.  140.  When  the  President  may  sus- 
pend it,  or  disobey  the  writ,  notes  140. 162.  Habeas  corpus 
defined,  n.  141.  Congress  alone  may  suspend  the  writ, 
n.  141.  Denied,  n.  140.  When  it  may  be  issued  by  the 
federal  courts,  n.  141,  p.  141.  When  the  State  courts  can- 
not release  under  it,  n.  141,  p.  142.  Not  when  committed' 
by  the  federal  government,  n.  141,  p.  143.  The  act  of  1863, 
suspending  the  writ.  Id.  His  proclamation  suspending  the 
writ,  Id.  The  courts  judicially  noticed  the  end  of  the  re- 
bellion, n.  141,  p.  144.  The  writ  in  favor  of  the  assassins 
disobeyed,  Id.  The  writ  the  remedy  for  false  imprison- 
ment, Id.  When  for  contempts,  Id.  The  laws  of  Pennsyl- 
vania about,  n.  141,  p.  145.  The  demarcations  between  the 
federal  and  State  governments  defined,  n.  141,  pp.  148, 149. 
The  distinction  between  process  and  imprisonment,  Id. 
The  rights  of  the  citizen  to  claim  the  benefit  of  the  writ  of 
habeas  corpus  is  an  immunity,  n.  221,  p.  226. 

Hall,  Lyman,  of  Georgia.  Signed  Dec.  of  Ind.  p.  8. 

Hamilton,  Alexandeb,  of  N.  Y.  Signed  the  Constitution,  p,  42. 

Hamlin,  Hannibal.  Vice-President  of  United  States,  n.  37. 

Hancock,  John,  of  Massachusetts.  Signed  Dec.  of  Ind.  p.  7\ 
and  Articles  of  Confederation,  p.  21. 

Hanson,  John,  of  Maryland.  Signed  Articles  of  Confederation, 

p.  21. 

Happen.  When  vacancies  happen  in  the  representation  from  any 
State,  the  executive  authority  thereof  shall  issue  writs  of 

election  to  fill  such  vacancies 

The  governors  may  act  without  waiting  for  the  house  or 
waiting  for  a resignation  of  the  vacancy  really  exist,  n.  45. 

Happen.  When  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  legislature  of  any  State,  the  exec- 
utive thereof  may  make  temporary  appointments,  &c 

The  vacancy,  how  it  happens,  n.  32.  The  executive  can- 
not appoint  before  the  vacancy  actuallv  happens,  n.  33. 

Happen.  The  President  shall  have  power  to  fill  up  all  vacancies 

that  may  happen  daring  the  recess  of  the  Senate,  &c 

Vacancies,  happen,  &c.,  defined  and  discussed,  n.  185. 
The  power  limited  by  the  tenure  ol  office  bill,  n.  184,  p.  180, 
§3. 

Harnett,  Corns.,  of  N.  C.  Signed  Articles  of  Confederation,  p.  21. 

Harrison,  Thomas,  of  Virginia.  Signed  Dec.  of  Ind.  p.  7. 

Harrison,  William  II.  President,  n.  166,  p.  163. 

Hart,  John,  of  New  Jersey.  Signed  Dec.  of  Ind.  p.  7 ; and  Arti 
cles  of  Confederation,  p.  21. 

Harvie.  John,  of  Virginia.  Signed  Articles  of  Confederation,  p.  21 

Heads  of  Departments.  The  President  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 

their  respective  offices 

What  are  these  cabinet  departments,  n.  176.  The  prac- 
tice as  to  the  opinions,  Id. 

Heads  of  Departments.  The  Congress  may,  by  law,  vest  the  ap- 
pointment of  such  inferior  officers  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 

heads  of  departments 

Who  are  such  inferior  officers,  n.  183. 

Hewes,  Joseph,  of  North  Carolina.  Signed  Dec.  of  Ind.  p.  8. 

Heyward,  Jr.,  Thomas,  of  South  Carolina.  Signed  Dec.  of  Ind. 
p.  8 ; and  Articles  of  Confederation,  p.  21. 


1 


1 


1 


2 


2 


2 


9 


2 


3 


2 


2 


2 


2 


2 


4 


1 


2 


pp. 

39, 242 
30,140 


23,72 

23,76 

36,182 

35, 171 
85,174 


544 


INDEX, 


Art.  sec. 

High  crimes  and  misdemeanors.  The  President,  Vice-President, 
and  all  civil  officers  of  the  United  States,  shall  be  removed 
from  office  on  impeachment  for,  and  conviction  of,  treason, 

bribery,  or  other  high  crimes  and  misdemeanors 2 4 

Confined  strictly  to  civil  officers,  n.  191.  Senators  are 
not  civil  officers,  Id.  Treason  and  bribery  defined,  Id. 

High  crimes  defined,  n.  193.  Misdemeanors  defined  and 
distinguished,  n.  194.  The  whole  question  and  prece- 
dents considered,  n.  194. 

Holton,  Samuel,  of  Mass.  Signed  Articles  of  Confederation,  p.  21. 

Honor.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 

the  United  States 1 3 

Judgment  defined,  n.  40.  Whether  it  shall  be  less, 

Id.  Punishment  touches  neither  person  nor  property, 
n.  40.  (See  notes  39,  191,  192, 193  194.)  The  President 
cannot  release  the  judgment  by  pardon.  Art.  II.  See.  2, 

Cl.  1,  n.  177. 

Hoofer,  William,  of  North  Carolina.  Signed  Dec.  of  Ind.  p.  S. 

Hopkins,  Stephen,  of  Rhode  Island.  Signed  Dec.  of  Ind.  p.  8. 

Hopkinson,  Francis,  of  New  Jersey.  Signed  Dec.  of  Ind.  p.  7. 

Hosmer,  Titus,  of  Conn.  Signed  Articles  of  Confederation,  p.  21. 

House.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war, 
but  in  a manner  to  be  prescribed  by  law.  Amendments  . 3 

His  house  is  his  castle,  n.  25.  The  occupant  is  the  owner 
for  this  purpose,  Id.  Soldier  and  quarter  defined,  Id. 

House  of  Representatives.  Congress  shall  consist  of  a Senate 

and  House  of  Representatives 1 1 

Only  one  house  under  the  Articles  of  Confederation,  Art. 

V.  p.  10.  (See  Congress.)  Congress  defined,  n.  15.  Wisdom 
of  the  division,  n.  15. 

House  of  Representatives.  Members  of  the  House  of  Represen- 
tatives chosen  every  second  year  by  the  people 1 2 

House  defined,  n.  16.  The  people  defined,  n.  16.  Com- 
pared with  electors,  citizens,  &c.  notes  16,  17, 18,  21,  93, 

220,  274.  Interpolations  by  the  Confederate  Constitution, 
n.  16,  p.  59.  (See  Citizens , notes  220,  274.)  How  chosen 
under  the  articles  of  Confederation,  Art.  V.  p.  10. 

House  of  Representatives,  members  of  the.  (See  Hepresenta - 
tires.) 

House  of  Representatives.  Qualifications  of  electors  of  members 
of  the  House  of  Representatives,  the  same  as  for  electors 

of  the  most  numerous  branch  of  the  State  legislature 1 2 

Qualifications  defined,  n.  16,  pp.  59,  60.  The  qualifica- 
tions in  each  State,,  alphabetically  arranged,  n.  17,  pp. 

60-64.  No  uniformity  of  qualifications  but  in  sex  and  age, 
n.  17,  p.  65.  Citizenship  does  not  give,  nor  the  want  of 
it  take  away,  the  right  to  vote,  n.  18. 

House  of  Representatives  shall  choose  their  Speaker  and  other 

officers 1 2 

Speaker  defined,  his  eligibility  to  the  Presidency,  n.  26. 

List  of  Speakers,  n.  26,  p.  73. 

House  of  Representatives  shall  have  sole  power  of  impeachment..  1 2 

We  must  look  to  the  common  law  for  the  definition  of 
impeachment,  n.  27.  Impeachment  defined  and  discussed, 
notes  27,  39,  191,  192,  193. 

House.  Each,  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a majority  shall 
constitute  a quorum  to  do  business;  but  a smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  members  in  such  manner 

and  under  such  penalties  as  that  house  may  provide 1 5 

Elections  defined,  n.  44.  The  returns  prima  facie 
evidence,  n.  45.  Qualifications  defined  and  discussed,  and 
the  issues  between  the  President  and  Congress  stated, 
n.  46,  pp.  84,  85,  86. 


cl. 


7 


1 


2 


5 

5 


1 


pp. 


86,185 


25,82 


44,256 

22,58 

22,58 


23,  66 


23,  72 

24,  7S 


25,84 


INDEX. 


545 


Art.  sec. 

House.  Each,  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two-thirds,  expel  a member 1 5 

The  rules,  where  found,  n.  47.  The  right  to  punish  for 
contempts,  n.  48.  For  what  a member  may  be  expelled  ; 
and  who  have  been  expelled,  notes  49,  50. 

House.  Each,  shall  keep  a journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as 
may,  in  their  judgment,  require  secrecy  ; and  the  yeas  and 
nays  of  the  members  of  either  house,  on  any  question, 
shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 

on  the  journal 1 5 

The  object  of  this,  n.  51.  v 

House.  Neither,  during  the  session  of  Congress,  shall  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses 

shall  be  sitting 1 5 

This  was  to  secure  independence  of  the  President,  n.  52. 

House  of  Representatives.  All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives,  but  the  Senate 
may  propose,  or  concur  with,  amendments,  as  on  other 

bills 1 7 

Copied  from  the  English  law,  n.  64.  Revenue  defined, 
n.  65. 

House  of  Representatives  and  Senate.  Every  bill  which  shall 
have  passed  the  House  of  Representatives  and  the  Senate 
shall,  before  it  become  a law,  be  presented  to  the  President 
of  the  United  States;  if  he  approve,  he  shall  sign  it,  but  if 
not,  he  shall  return  it,  with  his  objections,  to  that  house 
in  which  it  shall  have  originated,  who  shall  enter  the  ob- 
jections at  large  on  their  journal,  and  proceed  to  reconsider 
it.  If,  after  such  reconsideration,  two-thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with 
the  objections,  to  the  other  house,  by  which  it  shall  like- 
wise be  reconsidered,  and  if  approved  by  two-thirds  of  that 
house,  it  shall  become  a law.  But  in  all  such  cases  the 
votes  of  both  houses  shall  be  determined  by  yeas  and  nays ; 
and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  house  respect- 
ively. If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a lav%  in  like 
man  ner  as  if  he  had  signed  it,  unless  the  Congress,  by  their 
adjournment,  prevent  its  return,  in  which  case  it  shall  not 

be  a law 1 7 

When  bills  take  effect,  n.  66.  The  returning,  negative 
or  veto  defined,  n.  67.  History  of  the  veto,  n.  67,  pp.  92, 93. 

House  of  Representatives  and  Senate.  Every  order,  resolution,  or 
vote  to  which  the  concurrence  of  the  Senate  and  House  of 
Representatives  may  be  necessary  (except  on  a question 
of  adjournment),  shall  be  presented  to  the  President  of  the 
United  States,  and,  before  the  same  shall  take  effect,  shall 
be  approved  by  him ; or,  being  disapproved  by  him,  shall 
be  repassed  bytwo-thirds  of  the  Senate  and  House  of  Rep- 
resentatives, according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a bill X 7 

When  a joint  resolution  is  a law,  n.  70.  Resolutions 
proposing  amendments  to  the  Constitution  need  not  be 
submitted  to  the  President,  notes  236,  275,  284. 

House  of  Representatives.  If  no  person  have  a majority  (of  the 
electoral  votes  as  President  of  the  United  States),  then, 
from  the  persons  having  the  highest  numbers,  not  exceed- 
ing three,  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose,  immediately,  by 
ballot,  the  President.  But,  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  representatives  from 
each  State  having  one  vote : a quorum  for  this  purpose 
shall  consist  of  a member  or  members  from  twTo-thirds  of 


cl.  pp, 

2 25,  86 


3 26, 87 


4 26, 88 


1 27u90 


2 27, 91 


3 28, 93 


\ 


/ 


546 


INDEX. 


Art.  Bee.  cl 

the  States,  and  a majority  of  all  the  States  shall  be  neces- 
sary to  a choice.  And  if  the  House  of  Representatives 
shall  not  choose  a President,  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  4th  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability 

of  the  President.  Amendments 12  1 

The  old  Constitution,  n.  168.  The  contingency  of  four 
candidates  and  a tie  vote  met,  n.  168,  p.  166. 

Houses.  The  right  of  the  people  to  be  secure  in  their  houses 
against  unreasonable  searches  and  seizures,  shall  not  be 

violated.  Amendments : 4 

The  people  defined,  n.  251.  Searches  and  seizures,  when 
unreasonable,  n.  251.  Warrants  defined,  n.  252. 

Houses  of  Congress.  The  Congress,  whenever  two-thirds  of  both 
houses  shall  deem  it  necessary,  shall  propose  amendments 

to  this  Constitution 5 

What  is  the  Congress,  n.  2T5.  All  the  amendments  have 
been  proposed  to  the  legislatures,  n.  236.  The  history  of 
the  first  twelve,  n.  244.  Of  the  thirteenth,  n.  274.  Of  the 
fourteenth,  notes  275-285. 

Houses  of  Congress.  The  President  may,  on  extraordinary  occa- 
sions, convene  both  houses  of  Congress,  or  either  of  them.  2 3 

The  exercise  of  this  power,  n.  188. 

Huntington,  Samuel,  of  Connecticut.  Signed  Dec.  of  Ind.  p.  7. 

Signed  Articles  of  Confederation,  p.  21. 

Hutson,  Richard,  of  S.  C.  Signed  Articles  of  Confederation,  p.  21. 

Hydrometers  to  be  procured,  n.  102,  p.  117. 


pp. 


46, 165 


44,257 


44,258 


86,183 


Illinois.  Qualifications  for  suffrage  in,  n.  17,  p.  60.  Fourteen 
representatives  in  1860,  n.  24.  Population  during  the  dif- 
ferent decades,  n.  24,  pp.  69,  70.  Assigned  to  the  seventh 
judicial  circuit,  n.  197,  p.  192.  Admitted  into  the  Union, 
n.  230.  Ratified  the  13th  amendment,  n.  274 ; and  the  14th, 
n.  275. 

Immigrants  from  Europe,  with  six  years’’  residence,  allowed  to 
vote  in  South  Carolina,  n.  17,  p.  64.  And  in  Wisconsin,  Id. 

Immigration.  The  proper  term  in,  Art.  I.  Sec.  9,  cl.  1,  n.  139. 

Immunities.  The  citizens  of  each  State  shall  be  entitled  to  all 

privileges  and  immunities  of  citizens  in  the  several  States.  4 
Citizens  defined,  and  their  classification.  (See  Citizens , 
notes  220, 274.)  Privileges  and  immunities  defined,  n.  221. 
Immunities  are  rights  of  exemption  only,  n.  221. 

Impeachment.  The  House  of  Representatives  shall  have  the  sole 

power  of  impeachment 1 

We  look  to  the  common  law  for  the  definition  of  im- 
peachment, n.  27.  Defined,  notes  27,  191.  Discussed  as 
to  what  are  high  crimes  and  misdemeanors,  n.  194.  How 
tried,  and  trials  where  found,  n.  39.  Oath  of  senators  on 
trial,  n.  39,  p.  82.  Questions  to  senators,  Id.  Judgment 
in  cases  of,  n.  40.  History  of,  n.  194. 


Impeachment.  The  Senate  of  the  United  States  shall  have  the 

sole  power  to  try  all  impeachments 1 

For  the  doctrine  and  precedents,  n.  39. 

Impeachment.  When  sitting  to  try  an  impeachment,  the  Senate 

shall  be  on  oath  or  affirmation 1 

The  oath  of  the  senators,  and  the  question  propounded 
to  them,  n.  39. 

Impeachment.  When  the  President  is  tried,  the  Chief-Justice 

shall  preside 1 

History  and  failure  of  the  eifort  to  impeach  President 
Johnson  n.  194.  Charges  against,  and  law  arguments,  n.  194. 

Impeachment.  No  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present  1 

Impeachment.  Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  removal  from  office,  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 
under  the  United  States 1 


2 1 38, 222 

2 5 24,72 

3 6 25, 81 

3 6 25, 81 

8 6 25, 81 

8 6 25, 81 

8 7 25, 82 


INDEX, 


547 


Art.  sec. 

Judgment  defined,  n.  40.  Whether  it  can  be  less  than 
removal  and  disqualification,  n.  40.  It  can  be  no  more,  Id. 

Impeachment.  But  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  pun- 
ishment, according  to  law 1 3 

Impeachment.  The  President  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except 

in  cases  of  impeachment 2 2 

The  power  to  pardon  is  unlimited,  with  this  exception, 
n.  176,  p.  173. 

Impeachment.  All  civil  officers  of  the  United  States  shall  be 
removed  from  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors  2 4 

None  but  civil  officers,  n.  191.  Impeachment  defined, 
notes  27,  191.  For  treason  and  bribery,  n.  192.  High 
crimes  defined,  n.  193.  Misdemeanors  defined  and  distin- 
guished from  felony,  n.  194.  No  case  yet  tried  rests  upon 
statutable  misdemeanors,  n.  194,  p.  187.  Charges  against 
President  Johnson.  Argument  of  the  minority  that  they 
are  not  crimes  or  misdemeanors,  n.  194,  p.  188.  Chase’s 
trial,  notes  27,  194.  Blount’s  trial,  n.  194.  The  charges, 

Id.  Peck  and  Humphries,  n.  194,  p.  1S8.  “Good  beha- 
vior ” cannot  apply  to  the  President. 

Impeachment.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury 3 2 

Trial  and  crimes  defined,  n.  212. 

Impobtation.  No  amendment  made  prior  to  1808  shall  affect  the 

1st  and  4th  clauses  of  the  9th  section 5 

Importation  of  persons.  (Slaves.)  The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  Congress  prior 
to  the  year  eighteen  hundred  and  eight,  but  a tax  or  duty 
may  be  imposed  on  such  importation  not  exceeding  ten 

dollars  for  each  person 1 9 

Migration  or  importation  defined  and  discussed.  Migra- 
tion is  voluntary ; importation  involuntary,  n.  139.  Im- 
migration the  proper  word,  Id. 

imposts.  Congress  shall  have  power  to  lay  imposts 1 8 

Imposts  defined,  notes  76,  144. 

Imposts.  All  duties,  imposts,  and  excises,  shall  be  uniform 

throughout  the  United  States 1 8 

Taxes  must  be  by  the  rules  of  uniformity  or  apportion- 
ment, notes  22,  81,  144,  145.  It  here  means  that  the  same 
duties  shall  be  paid  at  all  the  ports. 

Imposts.  No  State  shall,  without  the  consent  of  Congress,  lay  any 

imposts  or  duties  on  imports  or  exports,  &c.  (See  Duties .)  1 10 

Imposts  defined,  n.  162. 

Inability.  In  case  of  the  inability  of  the  President  to  discharge 
the  powers  and  duties  of  that  office,  the  same  shall  de- 
volve on  the  Vice-President;  and  in  case  of  the  inability 
of  both  President  and  Vice-President,  Congress  shall  by 

law  declare  what  officer  shall  then  act  as  President 2 1 

The  law  of,  n.  172,  § 8.  The  President  pro  tem.  to  act 
as  President  when  ; Speaker  of  the  House,  n.  172. 

Independence.  Declaration  of,  pp.  1-8. 

Independence.  All  who  adhered  to  the  cause  of,  became  citizens 
of  the  United  States,  n.  220,  §§  1,  6.  And  those  who  ad- 
hered to  the  independence  of  Mexico  how  far,  Id. 

Independent.  That  these  United  States  are,  &c.,  p.  6.  Texas 
was  before  annexation,  Pref.  p.  viii.  Its  rights,  as  such,  how 
far  surrendered,  Id. 

Indiana.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Eleven 
representatives  in  1860,  n.  24.  Population  during  the  dif- 
ferent decades,  n.  24,  pp.  69-71.  Assigned  to  the  seventh 
judicial  circuit,  n.  197,  p.  192.  Admitted  into  the  Union, 
n.  230.  Ratified  the  13th  amendment,  n.  274;  and  the 
14th,  n.  275. 


cl. 


7 

1 


1 


3 


1 


1 

1 


2 


5 


pp. 

25,82 
35, 170 

36,185 

37, 209 
40,  246 

# 

30, 140 

28,94 
28, 194 

32, 161 
.34,169 


548 


INDEX. 


Indian  tribes.  Congress  shall  have  power  to  regulate  commerce 

among  the  several  States,  and  with  the  Indian  tribes 

The  power  is  absolute,  without  reference  to  the  locality 
of  the  tribe,  n.  91.  As  long  as  their  tribal  relations  exist, 
n.  91,  It  extends  to  prohibiting  intercourse  with  the 
Indians  and  punishing  crime  in  their  country,  n.  91.  Their 
ownership  of  land  defined,  n.  91.  A white  man  adopted 
by  the  Indians  is  not  an  Indian,  n.  91.  The  tribes  are  not 
subject  to  the  internal  revenue  tax,  n.  91,  pp.  110,  111.  Nor 
to  the  State  laws  of  taxation,  n.  91,  p.  Ill,  § 1.  Commerce 
with  the  Indians  is  regulated  by  treaties  and  intercourse 
laws,  n.  92,  § 2.  Not  embraced  in  acts  of  Congress  unless 
named,  n.  92,  § 3.  Not  foreign  States,  nor  States  of  the 
Union,  n.  208.  Slaves  among  them  might  be  apprehended 
by  the  President,  n.  257. 

Indians.  Were  citizens  of  Mexico,  and  thus  became  citizens  of 
the  United  States,  n.  220,  § 6.  Portions  of  them  declared 
citizens  of  the  United  States  by  treaty,  n.  220,  § 11. 

Indians  not  taxed,  excluded  from  representative  numbers 

Same  provision  in  the  14th  amendment,  pp.  50,  279,  § 2. 

Indictment.  No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  or  in- 
dictment of  a grand  jury,  &c.  Amendments 

Presentment  and  indictment  defined,  n.  253.  Grand 
jury  defined ; regulated  by  act  of  Congress,  Id.  Accusa- 
tion means  a copy  of  the  presentment  or  indictment,  n. 
260.  This  amendment  secures  a presentment  or  indict- 
ment before  there  can  be  a jury  trial,  n.  213. 

Indictment.  Persons  convicted  on  an  impeachment,  shall  never- 
theless be  subject  to  indictment,  trial,  judgment,  and 

punishment,  according  to  law 

(See  Impeachment.') 

Inferior  courts.  Congress  shall  have  power  to  create  tribunals 

inferior  to  the  Supreme  Court 

To  constitute  and  tribunals  defined,  n.  109.  This  affords 
no  pretext  for  abrogating  any  established  law  of  property, 
n.  109.  Or  overruling  State  decisions  as  to,  Id. 

Inferior  courts.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts,  shall 

hold  their  offices  during  good  behavior  : . . 

Congress  may  also  define  the  jurisdiction  of  inferior 
courts;  Territorial  courts  are  inferior,  n.  196.  The  tenure 
is  for  life  or  until  impeachment,  n.  197. 

Inferior  officers.  (See  Appointment , notes  179-1 84) 

Ingkrsoll,  Jared,  of  Penn.  Signed  this  Constitution,  pp.  42, 252. 

Inhabitant.  A representative  in  Congress  shall  be  an  inhabitant 

of  the  State  in  which  he  shall  be  chosen 

Inhabitant  defined,  n.  20.  Of  the  District  of  Columbia 
does,  a foreign  minister  does  not,  lose  his  character  of,  n.  20. 

Inhabitant.  A senator  in  Congress  shall  be  an  inhabitant  of  the 
State  in  which  he  shall  be  chosen 

Inhabitant.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one 
of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves.  Amendments 

Inhabitants.  Treated  as  citizens  under  the  Articles  of  Confeder- 
ation, Art.  IV.  p.  10.  Of  Louisiana,  Florida,  Texas,  Cali- 
fornia, and  Arizona  became  citizens,  n.  220,  § 3,  4,  5. 
Corporations  are,  for  the  purpose  of  suits,  n.  206.  The  rela- 
tions of  the,  of  the  loval  States  during  the  rebellion,  notes 
117,  215. 

Inspection  laws.  No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws ; 

Inspection  defined,  n.  164.  Absolutely  necessary  de- 


Art. 

1 


1 


5 


1 

1 


3 


2 

1 


1 


12 


1 


sec.  cl. 
8 3 


2 8 


3 7 

8 10 


1 

3 2 
2 2 

3 3 

1 


10  2 


pp. 

28, 105 


23, 67 
44 


25,  & 
29, 124 

86, 1S9 

35,174 
23,  66 

24,77 

46,164 


82,162 


INDEX. 


549 


Art.  sec. 

fined,  n.  62.  They  are  component  parts  of  the  power  of  a 
State,  n.  89,  p.  108. 

Instrument.  The  Constitution  must  he  construed  like  any  other, 
n.  1T0. 

Instruments.  The  right  to  regulate  commerce  carries  along  the 
right  to  regulate  the  instruments  of  intercourse  and  trade, 
notes  85,  274.  • 

Instruments.  Secretary  of  the  Treasury  to  procure  for  weighing 
and  gauging,  n.  102,  p.  118. 

Insurgent  States.  During  the  rebellion  did  not  become  foreign, 
and  their  inhabitants  alien  enemies,  n.  213.  (See  Rebel 
States.) 

Insurrection.  The  United  States  shall,  on  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature  can- 
not be  convened),  protect  each  State  against  domestic 

violence  or  insurrection 4 4 

Acts  of  the  Congress  upon  the  subject,  n.  235.  The 
President  must  decide  upon  the  facts  of  the  case,  Id.  p.  246. 

Insurrections.  Congress  shall  have  power  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  suppress 

insurrections,  and  repel  invasions 1 8 

Insurrections  denned  and  discussed,  n.  132.  Invasions 
defined,  n.  133. 

Interior  waters.  The  admiralty  jurisdiction  over  defined,  n. 

203. 

Intercourse  cannot  be  restricted  by  the  States,  n.  87,  p.  106. 

Invaded.  No  State  shall,  without  the  consent  of  Congress,  engage 
in  war  unless  actually  invaded,  or  in  such  imminent  danger 

as  will  not  admit  of  delay 1 10 

The  States  may  repel  invasions  upon  emergencies,  n.  164. 

Invasion.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  it 1 9 

(See  Habeas  Corpus , note  141.)  The  President  sus- 
pended the  writ,  Id.  n.  141,  p.  143. 

Invasion.  The  United  States  shall  protect  each  State  against 

invasion  4 4 

Invasion  defined,  notes  133,  234.  Extends  to  domestic 
as  well  as  foreign  hostility,  n.  234.  A political  question, 
n.  234.  History  of,  during  the  rebellion,  Id. 

Invasions.  Congress  shall  have  power  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  sup- 
press insurrections,  and  repel  invasions  1 8 

This  is  coupled  with  the  guaranty  to  protect  against, 
n.  133.  It  may  be  by  State  authority,  n.  133. 

Inventors  may  secure  exclusive  rights  to  their  discoveries  for  a 

limited  time 1 8 

Inventors  defined,  n.  108. 

Iowa.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Six  representa- 
tives in  1860,  n.  24.  Population  during  the  different 
decades,  n.  24,  pp.  69,  70.  Assigned  to  the  eighth  judicial 
circuit,  n.  197,  p.  192.  Admitted  into  the  Union,  n.  230. 

Ratified  the  13th  amendment;  n.  274,  and  the  14th,  n.  275. 

Iredell,  James.  Associate  Justice  of  the  Supreme  Court,  n.  197 

Izard,  Ralph.  President  of  the  Senate,  n.  38,  p.  78. 


cl. 


15 


3 


2 


15 


8 


pp. 


39,  242 
29, 133 

32,161 
30, 140 
39,  242 

29, 183 
29, 121 


Jay,  John.  Chief-Justice,  n.  197,  p.  192. 

Jackson,  Andrew.  Views  upon  nullification,  Pref.  p.  v.  n.  144. 

President  of  the  United  States,  n.  166.  Vetoes,  n.  67. 

Jackson,  William.  Attested  the  Constitution,  pp.  42,  252 

Jefferson,  Thomas,  of  Virginia.  Signed  Dec.  of  Ind.  p.  7 ; Presi- 
dent, n.  166. 

Jenifer,  Dan  : of  St.  Thomas,  of  Maryland.  Signed  the  Constitu- 
tion, pp.  42,  252. 

Jeopardy.  Nor  shall  any  person  be  subject,  for  the  same  offense, 

to  be  twice  put  in  jeopardy  of  life  or  limb.  Amendments.  5 44,258 

Jeopardy  defined  and  discussed,  n.  255. 

Johnson,  Andrew.  Vice-President,  n.  37,  p,  77.  President, 


550 


INDEX. 


Art.  sec.  cl.  pp. 

n.  166.  His  differences  with  Congress,  n.  46,  p.  85.  His 
notable  vetoes,  n.  67,  pp.  92,  93.  The  grounds  and  failure 
of  his  impeachment,  n.  194.  His  views  as  to  the  supre- 
macy of  law,  n.  239.  His  views  as  to  resolutions  propos- 
ing constitutional  amendments,  n.  236.  His  views  upon 
the  14th  constitutional  amendment,  n.  275.  His  condi- 
tions imposed  upon  the  rebel  States,  n.  27 6t  His  recom- 
mendation to  Congress  to  retrace  its  steps,  n.  281. 

Disbanded  the  militia  of  the  District  of  Columbia, 
n.  249. 

Johnson,  Kichard  M.  Vice-President,  n.  37,  p.  77. 

Johnson,  Thomas.  Associate  Justice,  n.  197,  p.  193. 

Johnson,  William.  Associate  Justice,  n.  197,  p.  193. 

Johnson,  William  Samuel,  of  Connecticut.  Signed  the  Consti- 
tution, pp.  42,  252. 

Journal.  Each  house  of  Congress  shall  keep  a journal  of  its 
proceedings,  and  from  time  to  time  publish  the  same, 
excepting  such  parts  as  may,  in  their  judgment,  require 
secrecy;  and  the  yeas  and  nays  of  the  members  of  either 
house,  on  any  question,  shall,  at  the  desire  of  one-fifth  of 


those  present,  be  entered  on  the  journal 1 5 3 26,187 

Journal.  When  the  President  shall  return  a bill,  with  his  objec- 
tions, to  the  house  in  which  it  originated,  those  objections 
shall  be  entered  at  large  on  their  journal,  and  the  votes, 
by  yeas  and  nays,  on  the  reconsideration  of  such  bill,  shall 
be  entered  on  the  journal  of  each  house  respectively. 

(See  Bill.) 1 7 2 27,91 

Judges  of  the  Supreme  Court.  The  President  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate, 
appoint  the  Judges  of  the  Supreme  Court  of  the  United 

States 2 2 2 35,174 

Judges  of  the  Supreme  and  inferior  courts  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a compensation  which  shall  not  be 

diminished  during  their  continuance  in  office 3 1 36,189 


During  good  behavior  defined,  n.  197.  Those  who  hold 
their  offices  for  a term  of  years  are  not  constitutional 
judges,  n.  197.  The  court  in  1863.  n.  197.  Since  the 
foundation  of  the  government,  n.  197,  p.  193,  The  com- 
pensation, n.  198. 

Judges.  The  judges  in  every  State  shall  be  bound  by  the  Consti- 
tution, laws,  and  treaties — any  thing  in  the  Constitution  or 

laws  of  any  State  to  the  contrary  notwithstanding 6 2 40, 247 

The  courts  will  declare  State  Constitutions  and  laws 
which  violate  the  paramount  law,  void,  n.  241. 

Judgment,  in  cases  of  impeachment,  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States ; but  the  party  convicted  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  pun- 
ishment, according  to  law 1 3 7 25.82 

Judgment  defined,  n.  40.  Can  neither  go  beyond  nor 
fall  short,  Id.  Touches  neither  person  nor  property,  Id. 

J udgments.  (See  A cts — Authentication — Credit — Faith — Judi- 
cial Proceedings.)  Where  the  jurisdiction  has  attached, 
the  judgment  is  conclusive,  11.  218,  p.  214.  If  there  has 
been  service  or  defense,  nothing  is  open  (not  even  fraud 
between  the  parties  and  privies)  save  the  question  of 
jurisdiction,  Id.  But  .they  are  subject  to  limitation, 
n.  21S,  p.  215.  They  are  conclusive  evidence,  Id.  They  are 
not  foreign,  but  domestic,  n.  218,  pp.  215,  219.  They  can 
be  controverted  for  want  of  service,  Id.  p.  217.  The 
courts  will  notice  the  local  laws  under  which  they  were 
rendered,  n.  219.  The  rule  only  applies  to  judgments  of 
courts  of  record,  Id.  Not  to  judgments  of  the  courts  of 
the  United  States,  n.  219,  p.  219.  How  they  must  be  cer- 
tified, Id.  Nil  debet  is  not  a good  plea,  n.  219,  p.  220. 


INDEX. 


551 


Art.  sec. 

The  judgment  determines  all  which  might  have  been  liti- 
gated in  the  cause,  Id. 

Judicial  power.  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a compen  - 
sation which  shall  not  be  diminished  during  their  con- 
tinuance in  office  3 1 

Judicial  power  defined,  n.  195.  Its  objects,  Id. 

(See  Courts — Inferior  Courts — Judges''  Compensation.) 

Judicial  power.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  the  treaties  made,  or  which  snail  be 
made,  under  their  authority ; to  all  cases  affecting  ambas- 
sadors, other  public  ministers,  and  consuls;  to  all  cases  of 
admiralty  and  maritime  jurisdiction;  to  controversies  to 
which  the  United  States  shall  be  a party;  to  contro- 
versies between  two  or  more  States;  between  a State  and 
the  citizens  of  another  State ; between  citizens  of  different 
States ; between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States ; and  between  a State,  or 
the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects.  3 2 

Judicial,  as  contradistinguished  from  legislative  and 
executive  power,  n.  199.  Does  not  extend  to  all  questions. 

Id.  As  to  various  political  treaties,  Id.  Case  defined  and 
treated,  notes  199,  200,  201.  (See  Ambassadors , n.  202. 
Admiralty , n.  203.)  Controversies  to  which  the  United 
States  shall  be  a party  explained,  n.  20*4.  The  power  over 
suits' between  States,  n.  205.  Between  a State  and  citizens 
of  another  State,  n.  205#.  Between  citizens  of  different 
States.  (See  Citizens , n.  206.)  Between  citizens  of  the 
same  State  claiming  land,  &c.  explained,  n.  207.  Between 
States  or  the  citizens  and  foreign  States,  &c.,  208,  209. 

(See  Aliens,  n.  209.) 

Judicial  power.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a State 
shall  be  a party,  the  Supreme  Court  shall  have  ori- 
ginal jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  jurisdic- 
tion, both  as  to  law  and  fact,  with  such  exceptions,  and 

under  such  regulations,  as  the  Congress  shall  make 3 2 

Original  jurisdiction  defined  and  discussed,  n.  210. 
Jurisdiction  defined,  n.  210.  When  the  suit  and  when 
the  parties  give  jurisdiction  in,  Id.  Appellate  juris- 
diction defined,  n.  211.  What  question  must  have 
been  made  to  give  appellate  jurisdiction,  n.  211,  p.  207. 

Congress  cannot  confer  the  power  to  grant  a new 
trial,  Id.  Where  a State  is  a party  defined. 

Judicial  power.  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury,  and  such  >rial  shall  be  held  in 
the  State  where  the  said*  crimes  shall  have  been  committed  ; 
but  when  not  committed  within  any  State,  the  trial  shall  be 
at  such  place  or  places  as  the  Congress  may  by  law  have 

directed 3 2 

(See  Trial , n.  212.)  ( Impeachment , notes  39,  191-194.) 

Jury , n.  212.  The  jury  not  the  judges  of  the  law,  Id.  Why 
in  the  State,  n.  213.  Where  offenses  committed  out  of  the 
State  are  tried,  n.  214. 

Judicial  proceedings.  Full  faith,  credit,  proof,  and  effect  to  be 
given  in  each  State  to  the  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State 4 1 

(See  Judgments,  notes  218,219.)  Judicial  proceedings 
defined,  n.  218.  How  proved,  n.  219,  p.  21 8,  § 1.  Of  every 
State  defined,  n.  218,  p.  219.  How  authenticated,  Id. 

When  so  proved  have  full  faith,  Id.  220. 

Judicial  officers,  both  of  the  United  States  and  the  several  States, 

40 


cl. 


1 


2 


3 


pp. 


36,189 


37, 194 


37,204 


$7,  as© 


38,  218 


552 


INDEX, 


Art  sec. 

shall  be  bound  by  oath  or  affirmation  to  support  this  Con- 
stitution   6 

The  reason  why,  n.  242.  The  oath  ; the  test  oath,  Id. 

Judicial  power.  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit,  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United  States, 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of 

any  foreign  State.  Amendments 11 

This  is  an  amendment  of  the  third  section,  notes  205a, 

270.  It  was  to  prevent  individual  suits  against  States, 
n.  170.  It  included  suits  then  pending,  Id.  Does  not  extend 
to  admiralty,  n.  272.  The  State  is  not  a party  unless  it  so 
appear  on  the  record,  n.  272. 

Jurisdiction.  The  judicial  power  shall  extend  to  all  cases  of 

admiralty  and  maritime  jurisdiction 3 2 

(See  Admiralty , n.  203.  See  Judicial  Power.) 

Jurisdiction.  Original  and  appellate ; in  the  Supreme 

Court 3 2 

Original  jurisdiction,  defined  and  discussed,  n.  210. 

State  courts  have  none  over  a consul,  n.  210,  p.  205. 

Appellate,  when  exercised,  and  the  rules  in,  n.  211. 

Jurisdiction.  A person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  and  fleeing  from  justice,  to  be  delivered 
up  and  removed  to  the  State  having  jurisdiction  of  the 
crime 4 2 

Jurisdiction.  No  new  State  shall  be  erected  within  the  jurisdic- 
tion of  any  other  State. 4 3 

How  West  Virginia  was  erected,  n.  235. 

Jury.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 

shall  be  by  jury 3 2 

Jury  defined;  what  must  concur  to  make;  not  judges 
of  the  law  in  criminal  cases;  must  be  a presentment  or 
indictment  before  there  can  be  a trial,  n.  212. 

Jury.  No  person  shall  be  held  to  answer  for  a capital  or  other- 
wise infamous  crime,  unless  on  a presentment  or  indict- 
ment of  a grand  jury,  &c.  Amendments 5 

(See  Indictment—  Presentment.  See  notes  253-257,  and 
267.) 

Jury.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
riuht  to  a speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously 
ascertained  by  law.  Amendments.., 6 

Jury.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  a jury 
shall  be  preserved  ; and  no  fact  tried  by  a jury  shall  be 
otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law.  Amend- 
ments   7 

This  includes  all  suits  except  those  in  equity  or 
admiralty,  n.  263.  Parties  may  waive  jury  trial,  n.  263. 

Justice.  Constitution  ordained  in  order  to  establish.  Preamble. 

Justice  defined,  and  how  to  be  attained,  n.  8. 

Justice.  The  Chief- Justice  shall  preside  when  the  President  is 

tried  on  an  impeachment 1 3 

Justice.  Fugitives  from  justice  to  be  delivered  up  and  removed 

to  the  State  having  jurisdiction  of  the  crime 4 2 

(See  Fugitive , note  223.)  Copied  from  the  Articles 
of  Confederation,  Art.  IV.  p.  10.  (See  Delivered  Up, 
n.  224.) 


cl. 

3 


1 

2 


2 

1 

3 


6 

2 


pp. 

41, 250 


46, 260 


37, 194 
37,204 


33,  229 
39,234 

37,  209 


44,258 


44,263 


45,266 

22,53 

25,81 
83,  229 


Kansas.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  One  repre- 
sentative, n.  24.  Population,  n.  24,  pp.  69,  70.  Assigned  to 
the  eighth  judicial  circuit,  n.  197,  p.  192.  Admitted  into 
the  Union,  n.  230.  Kntified  the  13th  amendment,  n.  274; 
and  the  14th,  n.  275. 

Kentucky.  Qualifications  for  suffrage  in,  n.  17,  p.  61.  Nine  rep- 
resentatives, n.  24.  Population  during  the  different 


INDEX, 


553 


Art.  sec.  cl.  pp. 

decades,  n.  24,  p.  69,  70.  Assigned  to  the  sixth  judicial 
circuit,  n.  197,  p.  192.  Admitted  into  the  Union,  n.  230. 

Rejected  the  13th  amendment,  n.  274;  and  the  14th, 
n.  275. 

King,  prince,  or  foreign  State.  No  title  of  nobility  shall  be 
granted  by  the  United  States,  and  no  person  holding  any 
office  of  profit  or  trust  under  them,  shall,  without  the 
consent  of  the  Congress,  accept  of  any  present,  emolu- 
ments, office,  or  title,  of  any  kind  whatever,  from  any 

king,  prince,  or  foreign  State 1 9 8 31, 152 

Office  defined,  n.  151.  The  inhibition  does  not  extend 
to  private  citizens,  n.  151. 

King,  Rufus,  of  Massachusetts.  Signed  the  Constitution,  pp.  41, 252. 

King,  William  R.  Vice-President,  n.  37.  Presiding  officer  of 
the  Senate,  n.  38,  p.  80. 


Labor.  No  person  held  to  service  or  labor  in  one  State,  shall  be 

discharged  from  such  service  or  labor  in  another  State 4 

This  means  slaves  or  apprentices,  n.  226.  (See  Fugitive , 
n.  206.) 

Land.  A civil  law  conveyance  of,  how  proved,  n.  219,  p.  221.  A 
Territory  the  compass  or  tract  of,  &c.  (See  Territory, 
n.  231.)  Land  and  territory  are  equivalents,  Id.  A grant 
of,  is  a title  emanating  from  the  sovereignty  of  the  soil, 
n.  207. 

Land  and  naval  forces.  Congress  shall  have  power  to  make  rules 
for  the  government  and  regulation  of  the  land  and  naval 

forces 1 

To  make  defined;  the  rules  where  found,  n.  129. 

Land  ceded  to  or  purchased  by  the  United  States.  Congress  shall 
have  power  to  exercise  exclusive  legislation,  in  all  cases 
whatsoever,  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 

other  needful  buildings. 1 

(See  Arsenals — District.) 

Land  forces.  (See  Army — Militia.) 

Lands.  The  judicial  power  shall  extend  to  controversies  between 
citizens  of  the  same  State,  claiming  lands  under  grants  of 

different  States • 3 

If  the  grants  are  from  different  States,  the  federal  court 
has  jurisdiction,  n.  207. 

Langdon,  John,  of  New  Hampshire.  Signed  the  Constitution, 
pp.  41, 250.  Presiding  officer  of  the  Senate,  n.  38,  p.  78. 

Langworthy,  Edward,  of  Georgia.  Signed  Articles  of  Confeder- 
ation, p.  21. 

Laurens,  Henry,  of  S.  C.  Signed  Articles  of  Confederation,  p.  21. 

Law.  The  actual  enumeration  of  the  people,  or  census,  shall  be 
made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct 1 

Law.  A person  convicted  on  an  impeachment  shall,  nevertheless, 
be  liable  to  indictment,  trial,  judgment,  and  punishment, 
according  to  law 1 

Law.  The  times,  places,  and  manner,  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may,  at 
any  time,  by  law,  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 1 

If  the  legislature  fail,  the  governor  may  name  a reason- 
able time,  notes  30,  41.  The  power,  how  far  exercised  by 
Congress,  n.  41.  Does  not  give  the  power  to  fix  the  quali- 
fications, n.  41.  Denied  since  the  13th  amendment,  n.  274. 

Law.  The  Congress  shall  assemble  at  least  once  in  every  year 
and  such  meeting  shall  be  on  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  law  appoint  a different  day 1 


2 3 39, 232 


8 14  29, 133 


8 17  80,136 


2 1 37, 194 


2 3 23, 67 

3 7 25, 82 

4 1 25, 83 


4 2 


25,83 


I 


554 


INDEX. 


Art.  sec.  cl. 


Law.  The  senators  and  representatives  shall  receive  a compen- 
sation for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States 1 

Law.  Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  become  a law.  be 
presented  to  the  President  of  the  United  States;  if  he 
approve,  he  shall  sign  it,  but  if  not,  he  shall  return  it  with 
his  objections  to  that  hou^£  in  which  it  shall  have  origi- 
nated, who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such  recon- 
sideration, two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  house,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  house,  it  shall  be- 
come a law 1 

"When  laws  take  etfect,  n.  96.  Cannot  go  behind  the 
written  law,  n.  96. 

Law.  If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a law,  in  like  manner  as 
if  he  had  signed  it,  unless  the  Congress,  by  their  adjourn- 
ment, prevent  its  return ; in  which  case  it  shall  not  be  a 
law 1 

Law.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  neces- 
sary (except  on  a question  of  adjournment),  shall  be  pre- 
sented to  the  President  of  the  United  States;  and  before 
the  same  shall  take  effect  shall  be  approved  by  him,  or 
being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  Senate  and  House  of  Representatives,  according  to 
the  rules  and  limitations  prescribed  in  the  case  of  a bill  ..  1 

When  a joint  resolution  becomes  law,  n.  70. 

Law  of  nations.  Congress  shall  have  power  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and 

offenses  against  the  law  of  nations 1 

Many  offenses  against,  not  crimes,  n.  115.  Offenses 
against  must  be  punished,  how,  Id.  Defined  and  dis- 
cussed, n.  116. 

Law.  No  bill  of  attainder  or  ex  post  facto  law  shall  be 

passed 1 

(Bee  Attainder . n.  142.)  Ex  post  facto  law  defined  and 
discussed,  notes  143, 156. 

Law.  No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law 1 

Law.  No  State  shall  pass  any  ex  post  facto  law 1 

Ex  post  facto  law  defined,  n.  156. 

Law.  No  State  shall  pass  any  law  impairing  the  obligation  of 

contracts ^ 1 

(See  Contracts , n.  157.)  What  laws  enter  into  the  con- 
tract, n.  157,  pp.  155,  156.  The  law  must  not  so  change  the 
remedy  as  to  impair  the  contract,  n.  157.  A law  repealing 
a bank  charter  does  not  impair.  A bridge  charter  is  a con- 
tract, n.  157.  Because  a law  is  retrospective  merely,  does 
not  impair,  n.  158.  Exemption  laws  do  impair,  n.  159. 
Stay  laws  may,  n.  160.  Laws  which  affect  the  remedy 
merely  do  not,  n.  161. 

Law.  In  case  of  the  removal,  death,  resignation  or  inability, 
of  both  President  and  Vice-President,  Congress  shall 
by  law  declare  what  officer  shall  then  act  as  Presi- 
dent   ... 2 

The  law  of  Congress  for  supplying  vacancies,  n.  172. 

Law.  The  President  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  appoint  officers  not  provided 
for  in  the  Constitution,  and  whose  offices  shall  be  estab- 
lished bylaw;  but  the  Congress  may,  bylaw,  vest  the 
appointment  of  such  inferior  officers  as  they  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments 2 


8 10 


9 

10 


10 


pp. 

26,  88 


27,91 

27,91 

28, 93 
29, 124 

81, 146 

31. 151 

81. 152 

31.153 


84,169 

85,174 


INDEX. 


555 


Art.  sec. 

This  whole  power  defined  and  discussed,  notes  178-184. 

The  tenure  of  office  bill  regulating,  n.  184,  p.  179. 

Law  4nd  equity.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  the  treaties  made,  or  which 
shall  be  made,  under  their  authority,  &c.  (See  Judicial  ( 8 2 

Power.)  ’. -j  3 2 

(See  Judicial  Power  ')  When  cases  arise,  n.  199,  p.  { 3 2 

195.  Cases  in  equity,  n.  200.  (See  Case.) 

Law  a»d  fact.  The  Supreme  Court  shall  have  appellate  jurisdic- 
tion, both  as  to  law  and  fact,  with  such  exceptions,  and 

under  such  regulations,  as  the  Congress  shall  make 3 2 

(See  Appellate — Jurisdiction— Judicial  Power.) 

The  jurisdiction  must  be  conferred  by  law,  n.  211.  The 
judiciary  laws  on  the  subject.  Id. 

Law.  When  crimes  shall  not  have  been  committed  within  any 
State,  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed 3 2 

The  rule  on  the  subject,  n.  214. 

Law.  No  person  beld  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 

party  to  whom  such  sea-vice  or  labor  may  fee  due 4 2 

(See  Fugitives — Labor — Slaves.)  This  secured  the 

right  of  the  slaveholder  against  State  legislation,  n.  227. 

Law,  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound  thereby,  any  thing  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding  6 

Law  defined,  n.  239.  It  is  in  its  nature  supreme,  n 238. 

The  laws  of  Congress  are  exclusive,  n.  239.  President 
Johnson’s  notion  as  to  unconstitutional,  n.  239.  Supreme 
law  defined,  n.  240. 

Law.  Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof ; or  abridg- 
ing the  freedom  of  speech  or  of  the  press ; or  the  right  of 
the  people  peaceably  to  assemble,  and  to  petition  the  gov- 
ernment for  a redress  of  grievances.  Amendments 1 

This  article  defined  and  discussed.  (See  Establishment , 
n.  245.) 

Law.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  aDy 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a manner  to  be  prescribed  by  law.  Amend- 


ments  3 

(See  House , n.  250.) 

Law.  Nor  shall  any  person  be  deprived  of  life,  liberty,  or  property, 

without  due  process  of  law.  Amendments 5 

Due  process  of  law  defined,  derived,  and  discussed,  n. 

257.  (See  Due  Process  of  Law.) 

Law.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the 


right  to  a speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed ; which  district  shall  have  been  previously 

ascertained  by  law.  Amendments 6 

Law.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved;  and  no  fact  tried  by  a jury  shall  be  other- 
wise re-examined  in  any  court  of  the  United  States  than 
according  tor  the  rules  of  the  common  law.  Amendments.  7 
Common  law  is  here  used  in  contradistinction  to  equity, 
n.  263.  Not  of  any  particular  State,  n.  263.  (See  Common 
Law — Jury.) 

Law  or  equity.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit,  in  law  or  equity,  corn- 


el. 


1 

2 

3 


2 


3 


2 


PP 

37, 194 
37,  204 
37, 209 

37,  204 
37,209 
39,  232 

40,247 

43,  254 

44, 256 

44,  258 

44,263 

45,266 


556 


INDEX. 


menced  or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments 

(See  this  article  explained  and  discussed,  notes  263,  264. 
265.) 

Lawrence,  John.  Presiding  officer  of  the  Senate,  n.  88,  p.  78 

Laws.  Congress  shall  have  power  to  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bank- 
ruptcies, throughout  the  United  States 

The  laws  of  naturalization  discussed,  n.  93.  (See  Alle- 
giance— Citizen — Bankruptcy.)  Bankrupt  defined,  n. 
94.  Bankruptcy  defined,  n.  95.  When  the  States  havo 
authority  to  pass  bankrupt  laws,  n.  96. 

Laws  of  the  Union.  Congress  shall  have  power  to  provide  for 
calling  forth  the  militia  to  execute  the  laws  of  the  Union, 

suppress  insurrections,  and  repel  invasions 

Laws  of  the  Union  defined,  n.  131. 

Laws.  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in 

any  department  or  office  thereof 

This  clause  defined  and  discussed,  notes  138,  274.  Con- 
gress has  all  the  incidental  and  instrumental  powers  neces- 
sary, n.  138,  p.  139. 

Laws.  No  State  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 

laws 

(See  Inspection.) 

Laws.  All  such  State  laws  shall  be  subject  to  the  revision  and 
control  of  the  Congress 

Laws.  The  President  shall  take  care  that  the  laws  be  faithfully 
executed 

Laws  of  the  United  States.  The  judicial  power  shall  extend  to  all 
cases  in  law  and  equity 

Lay  and  collect  duties.  Congress  shall  have  power  to  lay  and  col- 

duties,  taxes,  imposts,  and  excises 

(See  Duties—  Taxes — Imposts — Excises.) 

• Lee,  Fbanci8  Lightfoot,  of  Virginia.  Signed  Declaration  of  Inde- 
pendence, p.  8 ; and  Articles  of  Confederation,  p.  21. 

Lee,  Richard  Henry,  of  Virginia.  Signed  Declaration  of  Inde- 
pendence, p.  7.  Signed  Articles  of  Confederation,  p.  21. 

Legislation,  exclusive.  Congress  shall  have  power  to  exercise 
exclusive  legislation  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States  and  the  acceptance  of  Congress,  be- 
come the  seat  of  government  of  the  United  States,  and  to 
exercise  like  authority  over  all  places  purchased  by  the 
consent  of  the  legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 

dock -yards,  and  other  needful  buildings 

Character  of  this  legislation  and  jurisdiction,  notes  136, 
137. 

legislature  Electors  of  representatives  in  Congress  shall  have 
qualifications  same  as  for  electors  of  most  numerous 

branch  of  the  State  legislature 

The  qualifications  for,  in  each  State,  alphabetically  ar- 
ranged, n.  16,  pp.  59-64. 

Legislature  the,  of  each  State  shall  choose  two  senators  for  six 

years 

The  practice  and  now  the  law,  notes  28,  29,  30. 

Legislature.  If  vacancies  happen  by  resignation  or  otherwise  in 
the  seats  of  senators,  during  the  recess  of  the  legislature 
of  any  State,  the  excutive  thereof  may  make  temporary 
appointments  to  fill  such  vacancieSs  until  the  next  meet- 
of  the  legislature,  which  shall  then  fill  such  vacancies. . . . 
Seats  how  vacated,  n.  32. 


Art.  sec.  cl. 
11 

18  4 


1 8 15 


1 8 13 

1 10  2 

1 10  2 

2 3 1 

3 2 1 

18  1 


1 8 17 

12  1 
18  1 

13  2 


pp. 

46,269 


28,112 


29  *38 


30,138 


82, 161 

32, 161 
36, 183 
87, 194 
28,  94 


80,13b 


22,56 
24, 74 


24,76 


INDEX, 


557 


Art. 

Legislature.  The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representatives  shall  be  prescribed  in 
each  State  by  the  legislature  thereof;  but  the  Congress 
may,  at  any  time,  by  law,  make  or  alter  such  regulations, 

except  as  to  the  places  of  choosing  senators 1 

The  law  upon  the  subject,  n.  30. 

Legislature.  The  United  States  shall,  on  the  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature 
cannot  be  convened,  protect  each  State  against  domestic 


violence 4 

Disqualification  for  having  taken  an  oath  as  member 
of.  (See  Offices.)  Amendments 14 


How  far  the  disqualification  extended  under  the  recon- 
struction laws,  n.  281. 

Legislature.  Must  direct  the  mode  of  ascertaining  compensa- 
tion for  private  property,  n.  259. 

Legislatures  of  States.  Congress  shall  exercise  exclusive  legis- 
lation over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 

other  needful  buildings  1 

This  is  not  as  a local  legislature,  but  as  the  legislature 
of  the  Union,  n.  137.  The  exclusive  jurisdiction  can  only 
be  acquired  by  the  consent  of  the  State,  n.  137.  And 
when  given  they  cannot  tax  these  lands,  n.  137. 

Legislatures  of  States  may  direct  the  manner  of  appointing 
electors  of  President  and  Vice-President  of  the  United 

States 2 

They  are  now  elected  by  the  people,  n.  167. 

Legislatures  of  States.  Ho  new  State  shall  be  formed  within 
another  State,  nor  any  State  be  formed  by  the  junction  of 
two  or  more  States,  without  the  consent  of  the  legis- 
latures of  the  States  concerned  and  of  Congress 4 

How  States  may,  and  how  Virginia  did  consent,  n.  235. 

Legislatures.  The  Congress,  whenever  two-thirds  of  both 
houses  shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  States,  shall  call 
a convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  States,  or  by  conventions  in 
three -fourths  thereof,  as  one  or  the  other  mode  of  ratifi- 
cation may  be  proposed  by  Congress 5 

The  only  amendments  made  have  been  through  the 
legislatures,  n.  236.  When  they  ratified  the  thirteenth 
and  fourteenth  amendments,  Id. 

Legislatures.  The  members  of  the  several  State  legislatures 
shall  be  bound  by  oath  or  affirmation  to  support  this  Con- 
stitution   ft 

Legislatures.  When  the  legislatures  of  the  rebel  States  shall 
have  adopted  the  fourteenth  constitutional  amendment, 
n.  276,  p.  283,  § 5 

Letters  of  marque  and  reprisal.  Congress  shall  have  power  to 

grant  letters  of  marque  and  reprisal 1 

This  power  .defined,  n.  119.  Marque  defined,  n.  120. 
Reprisal  defined,  n.  121.  This  power  under  the  Confedera- 
tion, Art.  IX.,  p.  14. 

Lewis,  Francis,  of  Hew  York.  Signed  Dec.  of  Ind.  p.  7.  Signed 
Articles  of  Confederation,  p.  21. 

Liberty.  The  Constitution  established  to  secure  the  blessings  of 

liberty,  &c.  Preamble 

Liberty  defined,  n.  12.  Habeas  corpus  is  the  writ  for  the 
infraction  of,  n.  141,  p.  144.  The  13th  amendment  further 
secured,  n.  274.  Of  conscience,  n.  245.  Of  speech,  n.  246. 

Of  the  press,  n.  247.  Of  petition,  n.  248.  Secured  by  due 
course  of  law,  n.  257.  Of  the  citizen  not  to  be  destroyed 


eec.  cl. 


4 1 


4 1 


2 


8 17 


1 2 


3 1 


3 


8 11 


pp. 

25,83 

39,  242 
48,  279 

30, 136 

32, 162 
39, 234 


40, 246 


40,  250 
29, 127 


22,53 


558 


INDEX, 


Art.  sec.  cl.  pp. 

but  by  the  Judgment  of  his  peers,  n.  258.  Civil  liberty 
and  martial  law  cannot  endnre  together,  n.  260. 

Liberty.  Nor  shall  any  person  be  deprived  of  life,  liberty,  or 

property,  without  due  process  of  law.  Amendments 5 44, 258 


Derived  from  Magna  Charta,  n.  257.  Due  process  of  law 
defined,  Id. 

License  by  a municipal  corporation  is  not  a regulation  of  com- 
merce, n.  87,  p 106. 

Life.  No  attainder  of  treason  shall  work  corruption  of  blood  or 

forfeiture,  except  during  the  life  of  the  person  attainted..  3 8 2 33.213 

(See  Attainder.) 

Life  or  limb.  Nor  shall  any  person  be  subject,  for  the  same 
offense,  to  be  twice  put  in  jeopardy  of  life  or  limb. 


Amendments.  5 44,258 

Life,  liberty,  or  property.  Nor  shall  any  person  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law. 

Amendments  5 44,258 

(See  Jeopardy.)  f 

Lists  of  electoral  votes  for  President  and  Vice-President  of  the 

United  States  to  be  made . Amendments 12  46, 164 


Livingston,  Brockholst.  Associate  Justice,  n.  197,  p.  193. 

Livingston,  Philip,  of  New  York.  Signed  Dec.  of  Ind.  p.  7. 

Louisiana.  Qualifications  of  suffrage  in,  n.  17.  Number  of  rep- 
resentatives, n.  24.  Population  of,  in  each  decade,  n.  24. 

Admitted  into  the  Union,  n.  230.  Assigned  to  fifth  judi- 
cial circuit,  n.  197.  Its  history  during  the  rebellion,  n.  235. 

Ratified  the  13th  amendment,  n.  274;  rejected  the  14th,  n. 

275.  One  of  the  non-reconstructed  States,  n.  277,  § 2. 

Number  of  registered  voters,  n.  278. 

Lovell,  James,  of  Mass.  Signed  Articles  of  Confederation,  p.  21. 

Lynch,  Thomas,  Jr.,  of  South  Carolina.  Signed  Dec.  of  Ind.  p.  8. 

Madison,  James,  Jr.,  of  Virginia.  Signed  the  Constitution,  pp. 

42,  252.  President,  n.  166.  His  views  on  impeachment, 
n.  194.  On  bills  of  credit,  n.  93. 

Magazines,  &c.  Congress  shall  have  power  to  exercise  exclusive 

legislation  over  forts,  magazines,  &c 1 8 17  30,136 

(See  Exclusive  Legislation , n.  137.) 

Mahometanism.  The  first  amendment  not  to  countenance  or  ad- 
vance, n.  245. 

Maine.  Qualifications  of  voters  in,  n.  17,  p.  61.  Five  representa 
tives  in  1860,  n.  24,  p.  69.  Population  through  each  decade, 
n.  24,  pp.  6:>,  70.  Assigned  to  the  first  judicial  circuit, 
n.  197,  p.  182.  Admitted  into  the  Union,  n.  230.  Ratified 
the  18th  amendment,  n.  274;  the  14th,  n.  275. 

Major-Generals.  Five  in  the  army,  n.  124. 

Majority  of  each  house  of  Congress  shall  constitute  a quorum  to 


do  business.  Amendments 1 5 1 25,84 

A majority  of  those  present,  n.  67. 

Majoeity  of  the  whole  number  of  electors  necessary  to  elect  the 
President  and  Vice-President  of  the  United  States. 

Amendments 12  46,164 

Majority  of  all  the  States  shall  be  necessary  to  a choice  of  Presi- 
dent when  the  election  shall  devolve  on  the  House  of 

Representatives.  Amendments 12  46,164 

Majority  of  the  whole  number  of  senators  shall  be  necessary  to 
a choice  of  Vice-President,  when  the  election  of  that  offi- 
cer devolves  upon  the  Senate.  Amendments 12  *6, 164 


Majority  of  voters  to  ratify  the  Constitutions  of  the  Confederate 
States,  n.  276,  p.  2S3,  § 5.  A majority  of  all  the  registered 
voters  must  vote  for  the  convention,  n.  276,  p.  285,  § 8. 

And  a majority  of  the  registered  votes  cast  at  the  elec- 
tion must  ratify  the  Constitution,  Id.  § 5. 

Maritime  jurisdiction.  The  judicial  power  shall  extend  to  all 

cases  of  admiralty  and  mantime  jurisdiction 8 2 1 87, 194 

This  jurisdiction  defined,  n.  208.  Maritime  was  used 
to  guard  against  a narrow  construction  of  the  word  ad- 
miralty, n.  203.  Admiralty  jurisdiction  embraces  all 


INDEX. 


55S 


Art.  sec. 

maritime  contracts  wherever  made,  n.  203.  As  for 
material,  &c.,  Id. 

Marque.  This  power  under  the  Confederation,  Art.  IX.  p.  14. 

Marque  and  reprisal.  Congress  shall  have  power  to  grant  letters 

of  marque  and  reprisal 1 8 

These  terms  defined,  notes  119, 120,  121. 

Marque  and  reprisal.  No  State  shall  grant  letters  of  marque  and 

reprisal 1 10 

Because  it  is  a national  power,  n.  152. 

Marriage.  Used  in  connection  with  definition  of  disparage, 
n.  268. 

Marshal  of  the  United  States.  B.  C.  Parsons,  the  present,  n. 

197,  p.  192. 

Martial  law.  Cannot  exist  with  civil  liberty,  n.  260.  Defined 
and  distinguished  from  other  military  law,  n.  260,  p.  265. 

Martial  law,  or  military  law,  defined  and  explained,  n.  262, 
p.  265. 

Maryland.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Confede- 
ration, p.  9.  Signed  the  Articles  of  Confederation,  p.  21 ; 
the  Constitution  of  the  United  States,  pp.  41,  252.  Quali- 
fication of  voters,  n.  17,  p.  61. 

Maryland.  Entitled  to  six  representatives  in  the  first  Congress.  1 2 

Five  representatives  by  census  of  1860,  n.  24,  p.  69. 

The  number  of  inhabitants  through  each  decade,  n.  24, 
pp.  69,  70.  Assigned  to  the  fourth  judicial  circuit,  n.  197,  p 
192.  Katified  the  I3th  constitutional  amendment,  n.  274 
and  rejected  the  14th,  n.  275. 

Massachusetts.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con- 
federation, p.  9.  Signed  the  Articles  of  Confederation, 
p.  21.  Signed  the  Constitution  of  the  United  States,  p.  41. 
Qualification  of  voters,  n.  17,  p.  61.  Eight  representatives 
in  first  Congress.  Ten  representatives  in  1860,  n.  24,  p.  69. 

Number  of  inhabitants  through  each  decade,  n.  24,  pp.  69, 

70.  Assigned  to  the  first  judicial  circuit,  n.  197,  p.  192..  1 2 

Masters  of  vessels  cannot  be  required  to  pay  a passenger  tax, 
n.  88. 

Masters.  Might  seize  and  recapture  their  slaves,  n.  227,  p.  233. 

The  slaves  to  be  delivered  up  to  them,  n.  228.  Can  assign 
their  apprentices  in  Maryland,  n.  274,  p.  273. 

Materials  for  ships  under  admiralty  jurisdiction,  n.  203. 

Measures.  The  President  shall,  from  time  to  time,  recommend 
to  the  consideration  of  Congress  such  measures  as  he  shall 
judge  necessary  and  expedient.. '. 2 3 

Measures.  Congress  has  power  to  fix  the  standard  of  weights 

and  measures 1 8 

To  fix  defined,  n.  101.  "Weights  and  measures  of  the 
metric  system  made  lawful,  n.  102,  p.  117,  § 1.  And  con- 
tracts therein  rendered  valid,  Id.  Tables  for,  established, 

Id.  § 2.  Measures  of  length,  Id.  Of  surface,  Id.  Of  ca- 
* pacity,  Id.,  p.  118. 

Meeting  of  Congress.  The  census  to  be  taken  within  three  years 

of  the  first  meeting  of  Congress ...  1 2 

Meeting.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a different 

day 1 4 

When  the  c onstitutional  term  expires,  n.  43.  The 
meetings  as  now  prescribed  by  law,  n.  43.  Three  of  each 
Congress,  Id. 

Members  of  House  of  Bepresentatives.  (See  Representatives.) 

Members  of  the  Senate.  (See  Senators.) 

Michigan.  Qualifications  for  suffrage  in,  n.  17.  Number  of  rep- 
resentatives, n.  24.  Population  in  each  decade,  n.  24,  pp. 

69,  70.  Assigned  to  sixth  judicial  circuit,  n.  197.  Ad- 
mitted into  the  Union,  n.  230.  Katified  the  13th  amend- 
ment, n.  274 ; the  14th,  n.  275. 

Middleton,  Arthur,  of  South  Carolina.  Signed  Dec.  of  Ind. 

p.  8. 


cl. 


11 

1 


3 


3 


1 

5 


3 


2 


pp. 

29, 127 
31,153 

23, 67 

23,67 

36, 183 
29, 114 

23,  67 
25,83 


560 


INDEX, 


Middleton,  Daniel  W.  Clerk  of  the  Supreme  Court  of  the  United 
States,  n.  197. 

Military  arrest.  Persons  under,  to  be  tried  without  delay, 
n.  276,  p.  282,  § 4. 

Military  commission.  During  the  war  could  not  try  citizens  in 
the  loyal  States,  n.  260,  p.  264.  The  sentences  of,  in  the 
rebel  States,  how  to  be  approved,  n.  276,  p.  282,  § 4. 

Military  districts.  Five  created  in  the  ten  rebel  States,  n.  276, 
p.  282,  § 1.  Duties  of  the  commanders  in  the  same,  n.  276, 
p.  284,  § 2.  1 Supplementary  Act,  pp.  284,  285,  § 3,  4. 

Their  power  over  the  governments  (2  Supplementary  Act), 
p.  286,  § 1 Powers  in,  subject  to  the  supervision  of  the 
commanding  general,  p.  2S6,  § 2.  The  acts  of  the  officers 
already  done,  certified,  p.  287,  § 4. 

Military  law  defined  and  classified,  n.  260,  p.  265.  Congress  can 
give  the  power  to  try  those  connected  with  the  army  and 
navy  by  military  law,  n.  254. 

Military  and  naval  offenses  may  be  punished  in  the  manner 
practiced  by  civilized  nations,  n.  254, 

Militia.  Congress  shall  have  power  to  provide  for  calling  forth 
the  militia  to  execute  the  laws  of  the  Union,  suppress  in- 
surrections, and  repel  invasions 

Militia  defined,  notes  130,  135.  The  acts  for  calling 
them  forth,  n.  130,  p.  134.  The  President  must  judge 
when  he  has  the  authority,  Id.  The  militia  is  of  the 
States,  Id.  Not  subject  to  martial  law*  until  in  actual 
service,  n.  134.  Declared  national  forces,  n.  134,  p. 
136.  Differences  of  opinion  as  to  the  constitutionality, 
Id.  When  called  out  they  are  subject  to  the  articles  of 
war,  n.  135. 

Militia.  Congress  shall  have  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States,  reserving  to  the  States,  respectively, 
the  appointment  of  the  officers,  and  the  authority  of  train- 
ing the  militia  according  to  the  discipline  prescribed  by 

Congress  

These  terms  defined,  n.  134.  Acts  of  Congress  upon  the 
subject  and  its  history,  n.  135. 

Militia.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  actual  service  of  the 

United  States 

The  power  of  the  President  commences  when  that  of 
the  governors  ceases,  n.  175. 

Militia.  A well-regulated  militia  being  necessary  to  the  se- 
curity of  a free  State,  the  right  of  the  people  to  keep  and 

bear  arms  shall  not  be  infringed.  Amendments  

This  clause  defined,  n.  249.  President  Johnson’s  action, 
n.  249. 

Milttia.  No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  or 
indictment  of  a grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in 
actual  service,  in  time  of  war  or  public  danger.  Amend- 
ments  

Ministers,  public.  (S cq  Appointments — Ambassadors.') 

Public  ministers  defined,  notes  180, 181. 

Ministers,  public.  The  President  shall  receive  ambassadors  and 
other  public  ministers 

Ministers.  (See  Ambassadors*— Consuls — Judicial  Power.) 

Minnesota.  Qualifications  for  suffrage  in.  n.  17.  Number  of 
representatives,  n.  24.  Population  in  each  decade,  n.  24, 
pp.  69,  70.  Assigned  to  6ixth  judicial  circuit,  n.  197.  Ad- 
mitted into  the  Union,  n.  230.  Ratified  the  13th  amend- 
ment. II.  274 : the  14t  h.  275. 

Misdemeanors.  All  civil  officers  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of  misdemeanors,  &c. 


Art.  sec.  d. 


1 8 15 


1 8 16 


2 2 1 


2 


5 

2 2 2 
2 3 


2 4 


P* 


29, 183 


29, 135 


35,171 


43,256 


44,258 
85, 174 

26,183 


86, 185 


INDEX, 


561 


Art.  sec.  cl. 

Misdemeanors  defined  and  distinguished  from  crimes 
and  felony,  n.  194. 

Mississippi.  Qualifications  for  suffrage  in,  n.  IT.  Number  of  rep- 
resentatives, n.  24.  Population  of,  in  each  decade,  n.  24, 
pp.  69,  TO,  Assigned  to  fifth  judicial  circuit,  n.  19T.  Ad- 
mitted into  the  Union,  n.  230.  Its  history  during  the 
rebellion,  n.  235.  Ratified  the  13th  amendment,  n.  2T4. 

Rejected  the  14th,  n.  2T5.  One  of  the  rebel  States,  n.  2T6, 
p.  282,  § 1.  Its  government  subject  to  military  rule,  Id. 
p.  286,  § 1.  Number  of  registered  voters,  n.  2T8. 

Missouri.  Qualifications  for  suffrage  in,  n.  IT.  Number  of  rep- 
resentatives, n.  24.  Population  of,  in  each  decade,  n.  24. 
pp.  69,  TO.  Assigned  to  eighth  judicial  circuit,  n.  19T.  Ad- 
mitted into  the  Union,  n.  230.  Its  history  during  the 
rebellion,  n.  235.  Ratified  the  13th  amendment,  n.  2T4; 
the  14th,  n.  2T5. 

Monarchical  government,  as  contradistinguished  from  republican 
government,  n.  233,  p.  243. 

Money.  Congress  shall  have  power  to  borrow  money  on  the 


credit  of  the  United  States 18  2 

Money  defined,  notes  83,  84.  This  carries  the  right  to 
issue  treasury  notes  and  to  make  them  legal  tenders,  n.  83. 

Money.  Congress  shall  have  power  to  coin  money,  regulate  the 

value  thereof,  and  of  foreign  coin ...  1 8 5 

To  coin  money  defined,  n.  9T.  Money  defined,  n.  98. 


A history  of  regulating  the  value,  n.  99.  Legal  tenders 
considered,  n.  100. 

Money.  Congress  shall  have  power  to  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use  shall  bo  for  a 

longer  term  than  two  years 1 8 12 

(See  Appropriations , n.  126.) 

Money.  No  money  shall  be  drawn  from  the  Treasury,  but  in  con- 
sequence of  appropriations  made  by  law;  and  a regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. . 1 9 T 

Money.  No  State  shall  coin  money 1 10  1 

Monkoe,  James.  President,  n.  166. 

Morris,  Robert,  of  Pennsylvania.  Signed  Dec.  of  Ind.  p.  T. 

Signed  Articles  of  Confederation,  p.  21.  Signed  the  Con- 
stitution, p.  42. 

Morris,  Goitv.,  of  New  York.  Signed  Articles  of  Confederation, 
p.  21.  Of  Pennsylvania.  Signed  Constitution,  pp.  42, 

252. 

Morton,  J-ohn,  of  Pennsylvania.  Signed  Dec.  of  Ind.  p.  T. 


PP* 


28, 103 
29, 114 


29, 130 


31, 151 
31, 153 


Names  of  the  members.  The  yeas  and  nays  of  the  members  of 
either  bouse,  on  any  question,  shall,  at  the  desire  of  one- 

fifth  of  those  present,  be  entered  on  the  journal 1 5 3 26, 8T 

Names  of  the  signers  of  the  Dec.  of  Ind.  pp.  T,  8.  Of  the  Articles 
of  Confederation,  p.  21.  Of  the  Constitution  of  the  United 
States,  pp.  41,  42,  252.  Of  the  States  of  the  Union, 
notes,  IT,  24  2T4,  2T5.  Of  the  Speakers  of  the  House  of 
Representatives,  n.  26,  p.  T3.  Of  the  presiding  officers  of 
the  Senate,  n.  38.  Of  the  Presidents  of  the  United  States, 
n.  166,  p.  163.  Of  the  Vice-Presidents  of  the  United 
States,  n.  3T,  pp.  TT,  T8.  Of  the  Chief- Justices,  n.  19T,  p. 

192.  Of  the  Associate  Justices,  n.  19T,  p.  193.  Of  the  new  - i 

States  admitted,  n.  230,  pp.  236,  23T.  Of  the  States  which 
ratified  the  Constitution,  n.  243.  Which  ratified  and  re- 
jected the  13th  constitutional  amendment,  n.  2T4.  And 
14th  amendment,  n.  2T5.  Of  the  ten  rebel  States,  n.  2T6. 

National  bank.  The  States  have  the  right  to  tax  the  interest  of 
the  shareholders,  n.  T4.  The  power  of  Congress  to  incor- 
porate, notes  80, 138. 

National  forces.  All  the  citizens  of  the  United  States  declared, 
n.  135,  p.  136.  The  constitutionality  of  this  denied  and 
affirmed.  Id.  and  n.  125,  p.  132. 

National  government.  (See  Government,) 


562 


INDEX, 


Art.  sec.  cl. 

National  securities.  A statement  of,  n.  78,  p.  99.  The  States 
have  no  right  to  tax  them,  n.  84. 

Native  born  of  Louisiana  became  citizens,  n.  220,  § 3.  All  born 
in  the  allegiance  of  the  United  States  are  native  born, 
n.  274. 


Natural  born  citizens.  No  person,  except  a natural  born  citizen, 
or  a citizen  of  the  United  States  at  the  time  of  the  adoption 
of  this  Constitution,  shall  be  eligible  to  office  of  President.  2 
Not  made  by  law  or  otherwise ; born,  n.  169.  Every 
person  born  in  the  country  is  at  the  moment  of  birth 
prima  facie  a citizen,  notes  169,  274,  p.  224.  (See  Citizen 
notes  220, 274. 

Naturalization.  Congress  shall  have  power  to  establish  an  uni- 
form rule  of  naturalization 1 

Naturalization  defined,  n.  93.  Its  effects,  Id.  The  power 
in  Congress  is  exclusive,  Id.  Who  may  be  naturalized,  Id. 
p.  113,  and  note  274,  pp.  274,  275,  All  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reSTde  (see  Citizens ),  Art.  XIV.  pp.  1,  48.) 

Naval  forces.  Congress  shall  have  power  to  make  rules  for  the 

government  and  regulation  of  the  land  and  naval  forces. . . 1 

(For  these  rules,  see  n.  129.)  This  power  under  the 
Confederation,  Art.  IX.,  p.  14. 

Naval  forces.  No  person  shall  be  held  to  answer  for  a capital  or 
otherwise  infamous  crime,  unless  on  a presentment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval 

forces,  &c.  Amendments 5 

This  compared  with  the  last  recited  power  and  the  navy, 
n.  254.  Congress  may  punish  offenses  in  the  army  and 
navy,  n.  254.  Such  sentences  are  beyond  the  jurisdiction 
of  the  courts,  Id.  Congress  mav  fix  the  promotions  in,  n. 

184,  p.  181. 

Navigable  waters.  The  entire,  of  the  United  States,  covered  by 
the  admiralty  jurisdiction,  n.  203.  Without  regard  to  the 
ebb  and  flow  of  the  ocean,  Id.  Congress  may  regulate 
bridges  over,  n.  89,  p.  108. 

Navigation.  Included  by  the  term  commerce,  notes  86,  89,  274. 

Navy.  Congress  shall  have  power  to  provide  and  maintain  a navy.  1 
To  provide  and  maintain  defined,  n.  127.  Navy  defined, 
n.  128. 

Navy.  The  President  shall  be  commander-in-chief  of  the  army 

and  navy 2 

(See  Commander-in-chief  n.  175.) 

Nebraska.  Rule  of  suffrage  in,  n.  17,  p.  62.  Number  of  inhabit- 
ants in  1860,  n.  24,  p.  69.  Admitted  into  the  Union,  n. 

230.  Ratified  the  13th  constitutional  amendment,  n.  274; 
the  14th,  n.  275. 

Necessary.  Congress  shall  have  power  to  make  all  laws  which 

shall  be  necessary  and  proper 1 

Necessary  defined  and  criticised,  n.  188,  p.  139.  Com- 
pared with  appropriate,  n.  274.  Compared  with  absolutely 
necessary,  notes  138,  162. 

Necessary.  The  President  shall,  from  time  to  time,  recommend 
to  Congress  such  measures  as  he  shall  judge  necessary  and 


expedient 2 

Necessary.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 

Constitution,  &c 5 

Necessary.  A well-regulated  militia  being  necessary  to  the  secu- 
rity of  a free  State,  the  right  of  the  people  to  keep  and 
bear  arms  shall  not  be  infringed.  Amendments 2 


(See  Militia.) 

Nelson,  Jr.,  Tiiomas,  *»f  Virginia.  Signed  Dec.  of  Ind.  p.  7. 
Nevada.  Rule  of  suffrage  in,  n.  17,  p.  62.  Number  of  inhabitants 
in  I860,  n.  24,  p.  69.  Assigned  to  ninth  judicial  circuit, 
n.  197.  Admitted  into  the  Union,  n.  280.  Ratified  tho 
18th  constitutional  amendment,  n.  274.  The  14th,  n.  275. 


1 4 


8 4 


8 14 


8 13 

2 1 

8 18 
8 


pp. 


34,167 


28,112 


29, 133 


44, 258 


29, 132 
35,117 

80,138 

86,183 
40, 246 
43,256 


INDEX. 


563 


New  Hampshire.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con- 
federation, p.  9.  Signed  the  same,  p.  21.  Signed  the  Con- 
stitution of  the  United  States,  p.  41.  Rule  of  suffrage  in, 
n.  17,  p.  62. 

New  Hampshire.  Entitled  to  three  representatives  in  the  first 

Congress 

Three  by  the  census  of  1860,  n.  24,  p.  69.  Population 
under  each  decade,  n.  24,  pp.  69,  70,  71.  Assigned  to  the  first 
judicial  circuit,  n.  197,  p.  192.  Ratified  the  18th  amend- 
ment, n.  274.  The  14th,  n.  275. 

New  Jersey.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con- 
federation, p.  9.  Signed  the  Articles  of  Confederation, 
p.  21.  Signed  the  Constitution  of  the  United  States,  pp. 
41,  252.  Qualifications  for  suffrage  in,  n.  17,  p.  62. 

New  Jersey.  Entitled  to  four  representatives  in  first  Congress. . 

Three  by  the  census  of  1860,  n.  24,  p.  69.  Population 
under  each  decade,  n.  24,  pp.  69,  70,  71.  Assigned  to  the 
first  judicial  circuit,  n.  197,  p.  192.  Ratified  the  13th 
amendment,  n.  274;  the  14th,  n.  275 

New  States  may  be  admitted  by  the  Congress  into  this  Union 

New  States  defined,  n.  229.  Under  the  Articles  of  Con- 
federation, Art.  XI.  p.  19.  The  Confederate  States  Consti- 
tution prepared,  n.  229.  A list  of  new  States,  and' the  con- 
secutive dates  of  their  admission,  n.  230.  The  effect  of 
enabling  acts  and  of  the  Constitution,  n.  230, 

New  York.  Signed  the  declaration  of  Independence,  p.  7.  One 
of  the  States  of  the  Confederation,  p.  9.  Signed  the  articles 
thereof,  p.  21.  Signed  the  Constitution  of  the  United 
States,  pp.  42,  252.  Qualification  of  voters  in,  n.  17.,  p.  63. 

New  York.  Entitled  to  six  represent  atives  in  first  Congress 

To  thirty-one  under  the  census  of  1860,  n.  24,  p.  69. 
Population  under  each  decadfe,  pp.  69,  70.  Assigned  to  the 
second  judicial  circuit,  n.  197.  Ratified  the  13th  consti- 
tutional amendment,  n.  274 ; the  14th,  n.  275. 

Nobility.  No  title  of  nobility  shall  be  granted  by  the  United 

States 

Nobility  defined,  n.  150.  The  reason  given,  Id. 

Nobility.  No  State  shall  grant  any  title  of  nobility 

Nominate.  The  President  shall  nominate,  and,  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint  ambassa- 
dors, other  public  ministers,  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  herein  otherwise  provided 

for,  and  which  shall  be  established  by  law 

Nominate  defined,  n.  179. 

Nullification  and  secession  have  the  same  poisonous  root,  Pref. 
p.  vii. 


Art.  sec.  cl. 


12  3 


12  3 


4 3 1 


t 

12  8 


19  8 

1 10  1 


2 2 2 


Oath  or  affirmation.  Senators  when  sitting  to  try  impeachments 

shall  be  on  oath  or  affirmation 1 3 6 

The  oath  in  Chase’s  trial,  n.  39. 

Oath  of  the  President  of  the  United  States.  Before  he  enter  on 
the  execution  of  his  office,  he  shall  take  the  following  oath 
or  affirmation : “ I do  solemnly  swear  or  affirm,  that  I will 
faithfully  execute  the  office  of  President  of  the  United 
States,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United 

States.” 2 1 7 

This  constitutes  the  President,  above  all  other  officers, 
the  guardian,  protector,  and  defender  of  the  Constitution, 
n.  74. 

Oath  or  affirmation.  The  senators  and  representatives  before 
mentioned,  and  the  members  of  the  several  State  legisla- 
tures, and  all  executive  and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound  by 
oath  or  affirmation  to  support  this  Constitution,  but  no 
religious  test  shall  ever  be  required  as  a qualification  to 
any  office  or  public  trust  under  the  United  States 6 8 


pp. 


23,67 


23,167 
39,  234 


23,67 


31. 152 

31.153 


85,174 


25,81 


35,170 


40,250 


564 


INDEX, 


Art.  »ec. 

The  oath  prescribed  by  the  act  of  1789,  n.  242.  May  be 
enlarged,  Id.  and  n.  46.  It  binds  the  citizens  and  the  States 
to  support  the  Constitution,  Id.  The  test  oath  of  1862,  Id. 

Declared  unconstitutional  as  to  attorneys  in  certain  cases, 
n.  242.  Required  of  members  from  the  rebel  States,  n.  274, 
p.  283,  § 5.  The  oath  explained,  Id.  p.  287,  § 6. 

Oath  or  affirmation.  No  warrants  shall  issue  but  upon  probable 

cause,  supported  by  oath  or  affirmation.  Amendments. ..  4 

Oath  of  voters  in  the  rebel  States,  n.  286,  p.  284,  § 1. 

(See  Affirmation.') 

Objections  of  the  President  to  bills.  (See  Bills,  n.  67.  Veto , Id.) 

Obligation  of  contracts.  No  State  shall  pass  any.  bill  impairing 

the  obligation  of  contracts 1 10 

Remark  upon  this,  n.  152.  What  laws  enter  into  the 
obligation  of  the  contract,  n.  157.  (See  Contracts , notes 
157, 158,  159, 160,  161.) 

Occasions.  The  President  may,  on  extraordinary  occasions,  con- 
vene both  houses  of  Congress,  or  either  of  them 2 3 

Offense.  Nor  shall  any  person  be  subject  for  the  same  offense  to 

be  twice  put  in  jeopardy  of  life  or  limb.  Amendments. . . 5 

(See  Jeopardy.)  Offense  defined,  n.  194. 

Offenses  against  the  law  of  nations  may  be  defined  and  punished 

by  Congress 1 8 

Some  of  these  offenses  are  not  crimes,  n.  115.  The 
term  criticised,  Id.  and  n.  194.  (See  Law  of  Nations, 
n.  116.) 

Offenses.  The  President  shall  have  power  to  grant  reprieves  and 

pardons  for  offenses  against  the  United  States 2 2 

(See  Reprieve — Pardon.) 

Offenses  against  the  laws  of  war  must  be  dealt  with  by  the  same 
laws,  n.  115 

Office.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 

the  United  States 1 8 

It  has  been  doubted  if  it  should  fall  short  of  removal 
from  office,  n.  40. 

Office.  No  senator  or  representative  shall,  during  the  time  for 
which  be  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States  which  shall  have 
been  created,  or  the  emoluments  whereof  shall  have  been 

increased  during  such  time 1 6 

The  acceptance  of  an  incompatible  office  vacates  tho 
seat,  notes  62-63.  As  a collector  cannot  also  be  an  in- 
spector, n.  63. 

Office.  No  person  holding  any  office  under  the  United  States 
shall  be  a member  of  either  house  of  Congress  during  his 

continuance  in  office 1 6 

The  acceptance  of  an  incompatible  office  vacates  the 
first,  n.  63. 

Office  of  the  government.  Congress  shall  have  power  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof 1 8 

Office.  No  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  or  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State. ...  1 9 

This  does  not  extend  to  private  citizens,  n.  151. 

Office.  The  President  shall  hold  his  office  during  the  term  of 
four  years,  and  the  Vice-President  chosen  for  the  same 

time 2 1 

It  was  argued  that  the  office  being  for  a term  of  years, 
the  President  could  not  be  subject  to  the  rule  of  good 
behavior  applicable  to  judges,  n.  194. 

Office.  No  person  holding  an  office  of  trust  or  profit  under  the 


cl 


10 


1 


2 


2 


18 


8 


1 


pp. 

44.257 
131, 153 

36,183 

44. 258 

29, 124 
35,171 

25,82 

27,90 

27,90 

80, 13S 
81, 152 
82, 162 


INDEX, 


565 


Art.  sec. 

United  States  shall  be  appointed  an  elector  of  President  or 
Yice-President  of  the  United  States 2 1 

Office  of  President  United  States.  Eligibility  of  a person  to  the 
office  of  President  of  the  United  States.  (See  Eligi- 
bility.) 2 1 

Office.  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Yice-President,  and  the  Congress  may,  by  law,  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Yice-President,  declaring  what  officer 
shall  then  act  as  President  ; and  such  officer  shall  act  ac- 
cordingly until  the  disability  be  removed  or  a President 

shall  be  elected 2 1 

The  office  now  devolves  first  upon  the  Yice-President, 
next  upon  the  presiding  officer  of  the  Senate ; and  lastly, 
upon  the  Speaker  of  the  House  of  Representatives;  and 
elections  are  provided  for,  n.  172. 

Office,  tenure  of.  Those  holding  to  continue,  how  long,  n.  184, 
pp.  179,  180,  § 1,  4.  The  cabinet  to  hold  during  the 
presidential  term,  subject  to  removal.  Id.  § 1.  Upon 
suspension  of  office,  duties  of,  how  performed.  Id.  § 2. 

The  effect  of  the  suspension  from.  Id.  When  offices  re- 
main in  abeyance,  Id.  p.  180,  § 3.  To  hold  contrary  to 
law,  how  punished,  Id.  § 5.  To  appoint  to,  contrary  to 
law,  how  punished,  Id.  § 6.  Duties  of  the  President  on 
naming  any  person  to  office,  n.  184,  p.  181,  § 8.  No  person 
to  be  paid  for  exercising  office  contrary  to  the  act ; punish- 
ment for,  Id.  § 9.  The  decisions  before  the  law,  n.  184, 

p.  181. 

Office.  Oath  of  office  of  President  of  the  United  States 2 1 

(See  Oath , n.  242.) 

Offices.  The  President  may  require  the  opinion,  in  writing,  of 
the  principal  officers  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of  their  respective 

offices 2 2 

As  to  who  those  seven  officers  are,  see  note  176. 

Offices.  The  judges,  both  of  the  Supreme  and  Inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall  at 
stated  times,  receive  for  their  services  a compensation, 
which  shall  not  be  diminished  during  their  continuance  in 

office 3 1 

That  is  for  life  or  until  impeached.  See  notes  194, 

197,  198.  All  offices  to  be  established  by  the  Constitution 
or  law,  n.  181.  What  are  offices,  Id.  The  power  to 
appoint  to  includes  the  power  to  remove,  n.  184.  Now 
regulated  by  the  Tenure  of  Office  law,  Id.  p.  179. 

Officers  of  the  army  and  navy  can  only  be  removed  by  court- 
martial,  n.  184,  p.  179.  Tenure  of  civil  offices — Cabinet, 

Id.  When  subject  to  suspension  and  removal,  and  the 
consequences,  Id.  Who  to  exercise  the  temporary  powers 
of,  Id.  § 2,  3.  To  be  commissioned  by  the  President 
when,  n.  184,  p.  180,  § 6. 

Officers.  The  House  of  Representatives  shall  choose  their 


Speaker  and  other  officers 1 2 

Officers.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Yice-Presi- 
dent  1 3 

List  of  presiding  officers,  n.  38.  When  they  become 
President,  n.  172. 

Officers  of  militia.  The  appointment  of  officers  of  the  militia 

reserved  to  the  States  respectively 1 8 

This  was  in  effect  destroyed  by  the  conscript  law,  n. 

125.  (2  2 

Officers  of  the  United  States.  (See  Appointments  of.) 12  2 

Officers.  The  President  shall  commission  all  the  officers  of  the 

United  States 2 3 

Officers.  All  civil  officers  of  the  United  States  shall  be  removed 


cl. 

2 

4 


5 


7 


1 


5 

5 


16 

2 

3 


pp. 

32,164 

34,167 

34,169 


35.170 

35.171 

36, 189 


23,  72 
24,178 

29, 135 

33,174 

35. 182 

36. 183 


566 


INDEX. 


Art. 

from  office  on  impeachment  for,  and  conviction  of,  treason, 

bribery,  or  other  high  crimes  and  misdemeanors 2 

None  but  civil  officers  are  subject  to  impeachment, 
n.  191.  Senators  are  not,  notes  191,  194. 

Officers.  All  the  executive  and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound 

by  oath  or  affirmation  to  support  this  Constitution 6 

For  oath  of  office  and  test  oath  see  n.  142. 

No  person  shall  be  a senator  or  representative  in 
Congress,  or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a vote  of  two-thirds 

of  each  house,  remove  such  disability.  Amendments 14 

This  disqualification  extended  to  members  of  the  Re- 
construction Conventions  and  to  voters  for  delegates, 
n.  276,  p.  287  § 5.  The  expurgatory  oath  to  reach  them, 
n.  276  (Supplementary  Act),  § 1.  The  disqualification  ex- 
plained, n.  276,  p.  287  § 6.  The  commanders  of  districts 
allowed  to  remove  any  officers  of  the  rebel  States,  n.  276 
(Second  Supplementary  Act),  p.  284,  § 2.  This  third  sec- 
tion discussed,  n.  281.  May  overrule  the  test  oath  as  to 
those  not  disqualified,  n.  281. 

Ohio.  Rule  of  suffrage  in,  n.  17.  Representatives  by  the  census 
of  1860,  n,  24.  Number  of  inhabitants  through  each  de- 
cade, n.  24.  pp.  69,  70.  Assigned  to  the  sixth  judicial  cir- 
cuit, n.  197.  Ratified  the  thirteenth  constitutional  amend- 
ment. n.  274  ; the  fourteenth,  n.  275.  And  withdrew  rati- 
fication, Id. 

One-fifth  of  the  members  present.  The  yeas  and  nays  of  the 
members  of  either  house,  on  any  question,  shall,  at  the 
desire  of  one-fifth  of  those  present,  be  entered  on 
the  journal 1 

Opinion.  The  President  may  require  the  opinion,  in  writing,  of 

the  principal  officer  in  each  of  the  executive  departments.  2 
These  opinions,  how  given  and  by  whom,  n.  176. 

Ordain  and  establish  this  Constitution  for  the  United  States  of 

America,  &c.  We  the  people  do.  Preamble 

(See  America — Constitution.) 

Ordain  and  establish.  The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  in- 
ferior courts  as  the  Congress  may,  from  time  to  time, 

ordain  and  establish 3 

As  Congress  has  the  power  to  establish,  it  may  regulate 
the  jurisdiction,  n.  136. 

Order,  resolution,  or  vote,  to  which  the  concurrence  of  the  Senate 
and  House  of  Representatives  may  be  necessary,  except 
on  questions  of  adjournment,  shall  be  presented  to  the 

President 1 

(See  Concurrence — Resolution.) 

Oregon.  Rule  of  suffrage  in,  n.  17,  p.  63.  One  representative 
under  the  census  of  1860,  n.  24,  p.  69.  Number  of  inhab- 
itants under  the  decades,  n.  24,  pp.  69,  70.  Treaty  with 

Great  Britain  in  relation  to,  n.  178,  p.  175.  Assigned  to 

» the  ninth  judicial  circuit,  n.  197,  p.  192.  Ratified  the  thir- 

teenth constitutional  amendment,  n.  274.  And  the  four- 
teenth, n.  275. 

Organizing  the  militia.  Congress  shall  have  power  to  provide 

for  organizing,  arming,  and  disciplining  the  militia 1 

(See  Militia.) 

Original  jurisdiction.  In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a State 


sec.  cl. 

4 


3 


3 


5 3 

2 1 


1 1 


7 3 


8 16 


pp. 

36,185 

41,250 


49,  280 


26,67 

23,171 

22,  53 
86,  ISO 

28,93 


29, 185 


INDEX, 


5(>7 


shall  be  a party,  the  Supreme  Court  shall  have  original 

jurisdiction 

This  original  jurisdiction  is  confined  to  two  classes  of 
cases,  defined,  n.  210,  p.  203.  Co-extensive  with  the  judi- 
cial power,  Id.  Restricts  Congress,  n.  210.  (See  Jurisdic- 
tion, notes  210,  211.) 

Originate.  All  bills  for  raising  revenue  shall  originate  in  the 

House  of  Representatives  

The  reason  of  this  rule,  n.  64.  Revenue  defined,  n.  65. 

Originated.  Every  bill,  resolution,  order,  or  vote,  not  approved, 
shall  be  returned  by  the  President,  with  his  objections,  to 

that  house  in  which  it  shall  have  originated 

When  returned,  n.  68. 

Overt  act.  No  person  shall  be  convicted  of  treason,  unless  on 

the  testimony  of  two  witnesses  to  the  same  overt  act 

(See  Treason , n.  215.) 

Owner.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner.  Amendments. 
The  occupant  is  the  owner,  n.  250. 

Owners  of  slaves.  No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 

may  be  due 

Person  and  State  defined,  n.  226.  Escaping  defined, 
n.  227.  The  owner  was  clothed  with  full  authority  to  re- 
capture, n.  227. 


Art. 

3 


1 


1 

3 

3 


4 


Paca,  William,  of  Maryland.  Signed  the  Dec.  of  Ind.  p.  7. 

Pa  ine,  Robert  Treat,  of  Massachusetts  Signed  the  Dec.  of  Ind. 
p.7. 

Papers.  The  right  of  the  people  to  be  secure  in  their  effects 
against  unreasonable  searches  or  seizures  shall  not  be  vio- 


lated. Amendments 4 

People,  and  searches  and  seizures,  defined,  n.  251.  War- 
rant defined  and  the  reasons  given,  n.  252. 

Pardons.  The  President  shall  have  power  to  grant  pardons 2 


Pardon  defined,  n.  177.  May  be  granted  as  well  before  as 
after  trial,  n.  177.  The  extent  of  the  pardon ; it  must  be 
accepted;  it  blots  out  the  offense,  n.  177,  p.  173.  The  ef- 
fect of  the  pardon  of  the  rebels,  notes  46, 177,  p.  174.  As  to 
whether  it  overcame  the  test  oath,  n.  46.  Did  not  give  the 
right  to  vote  or  hold  office  in  the  rebel  States,  n.  276 
(Second  Supplementary  act),  p.  288,  § 7. 

Parsons,  R.  C.  United  States  Marshal,  n.  197. 

Pass  any  bills.  No  State  shall  pass  any  bill  of  attainder,  ex  post 

facto  law,  or  law  impairing  the  obligation  of  contracts 1 

(See  Attainder , note,  n.  142.  Ex  post  facto,  notes  143, 
156.) 

Passed  the  House  of  Representatives  and  Senate.  Every  bill, 
resolution,  <fcc.,  passed  by  the  House  of  Representatives 
and  Senate,  shall  be  presented  to  the  President,  &c 1 

Passed.  Bills,  resolutions,  &c.,  returned  by  the  President,  may 

be  passed  be  two-thirds  of  both  houses 1 

(See  Bills , n.  66-70.) 

Patent  rights.  Congress  shall  have  power  to  promote  the  pro- 
gress of  science  and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their 

respective  writings  and  discoveries 1 

See  the  terms  defined  and  discussed,  notes  107,  108. 

Patent  office.  Description  of,  n.  108. 

Patents  are  to  be  liberally  construed,  n.  108. 

Paterson,  William,  of  New  Jersey.  Signed  the  Constitution, 
p.  42.  Associate  Justice,  n.  197,  p.  193. 

Pay  the  debts  of  the  United  States.  Congress  shall  have  power 

to  pay  the  debts  of  the  United  States 1 

The  object  of  this  phrase,  n.  78.  The  amount  of  the 

41 


sec.  cl 


7 1 

7 2 

3 1 


2 


2 1 


10 


7 2 

7 2 


8 8 


8 1 


pp. 

87, 204 

27,  90 

27,  91 
38, 211 
44,  256 

; 89,232 


44,  257 
35, 171 


31, 153 

27,91 

27, 

29, 121 


28,94 


568 


INDEX, 


\ 


Art. 

debts  since  the  foundation  of  the  government,  n.  78,  pp. 

97, 100.  (See  Public  Debt.) 

Payment  of  debts.  No  State  shall  make  any  thing  but  gold  and 

silver  coin  a tender  in  payment  of  debts 1 

But  Congress  may  issue  treasury  notes  and  make  them 
a legal  tender  in  the  payment  of  debts,  notes  84,  97,  100. 

(See  Arrest.) 

Peace.  For  a breach  of  the  peace  a senator  or  representative 


may  be  arrested 1 

Peace.  No  State  shall,  without  the  consent  of  Congress,  keep 

troops  or  ships  of  war  in  time  of  peace 1 

Peace.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 

house  without  the  consent  of  the  owner.  Amendments. . 8 


(See  House.) 

Peck,  James  H.  Trial  of,  notes  36, 194. 

Penalties.  Each  house  may  be  authorized  to  compel  the  at- 
tendance of  absent  members,  in  such  manner  and  under 
such  penalties  as  each  house  may  provide 1 

Penn,  John,  of  North  Carolina.  Signed  Dec.  of  Ind.  p.  7. 
Signed  Articles  of  Confederation,  p.  21. 

Pennington,  William.  Speaker  of  the  House  of  Representa- 
tives. n.  26. 

Pennsylvania.  Signed  the  Dec.  of  Ind.  p.  7.  One  of  the  Con- 
federation, p.  9.  Signed  the  articles  thereof,  p.  21.  Signed 
the  Constitution,  pp.  42,  252.  Qualifications  of  voters, 
n.  17,  p.  63. 

Pennsylvania.  Entitled  to  eight  representatives  in  first  Con- 
gress  1 

Twenty-four  under  the  census  of  1860,  notes  24,  28,  67, 
pp.  63,  69.  Qualification  of  suffrage,  n.  17.  Population 
under  each  decade,  n.  24,  pp.  69,  70.  Assigned  to  the 
third  judicial  circuit,  n.  197.  Ratified  the  thirteenth 
constitutional  amendment,  n.  274 ; the  fourteenth,  n.  275. 

People  United  States  ordain  and  establish  this  Constitution. 

Preamble 

By  the  people,  not  bjT  the  State  in  their  sovereign 
capacity.  How  by  the  people.  Compared  with  citizens, 
notes  6,  16,  17,  24,  220,  221,  274,  281. 

People.  Members  of  House  of  Representatives  to  be  chosen 

every  second  year  by  the  people  of  the  several  States 1 

The  people  here  defined  and  compared.  The  real  actors 
are  the  voters,  n.  16. 

People  represented  are — all  free  persons,  those  bound  for  a term 
of  years,  Indians  taxed,  and  three-fifths  of  all  other  per- 
sons  1 

That  is  two-fifths  only  of  the  slaves  were  excluded, 
n.  24.  The  free  blacks  were  always  counted,  n.  24. 

People.  The  enumeration  of  the  people  to  be  made  within  three 
years  after  the  first  meeting  of  Congress,  and  every  ten 
years  thereafter,  in  such  manner  as  they  may  by  law 

direct 1 

The  result  of  these  various  enumerations,  notes  24, 
69-71. 

People.  Congress  shall  make  no  law  abridging  the  rights  of  the 
people  peaceably  to  assemble  and  to  petition  the  govern- 
ment fora  redress  of  grievances.  Amendments 

People.  The  right  of  the  people  to  keep  and  bear  arms  shall  not 

be  infringed.  Amendments 2 

Here  used  in  the  broad  sense  of  the  preamble,  n.  248. 

People.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated;  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or  affir- 
mation, and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized.  Amend- 
ments   4 

(See  note  249.) 

People.  The  enumeration  in  the  Constitution  of  certain  rights, 


sec.  cl. 


10  1 


6 1 
10  3 


5 1 


2 3 


2 1 


2 3 


2 3 


pp. 


31,153 

26,88 
32, 101 
44,256 


25,84 


28,67 


22,53 


22, 56 


23,  67 


23,  67 


43  254 
43,  256 


44,257 


INDEX, 


569 


shall  not  be  construed  to  deny  or  disparage  others  retained 

by  the  people.  Amendments 

Here  used  in  the  sense  of  the  preamble,  n.  268. 

People.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people.  Amend- 
ments  

People  of  the  rebel  States.  When  they  shall  have  formed  a con- 
stitution, n.  276,  p.  283,  § 5.  Until  the  people  shall  have 
been  admitted  to  representation  in  Congress.  Id.  § 6.  (See 
Person.')  . 

Person.  Qualification  of  a person  to  be  a representative  in  Con- 
gress   

(And  see  Qualifications , n.  46.) 

Person.  Qualification  of  a person  to  be  a senator  in  Congress  . . . 

Person  defined  and  criticised.  Is  masculine,  notes  16, 
35,  46. 

Person.  No  person  shall  be  convicted  on  an  impeachment  with- 
out the  concurrence  of  two-thirds  of  the  senators  present- 

Person.  No  person  holding  any  office  under  the  United  States 
shall  be  a member  of  either  house  during  his  continuance 

in  office 

The  reason  and  effects  of  such  disqualification  defined 
and  discussed,  notes  25,  62,  63, 150,  151. 

Person.  No  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State  . . . 

This  inhibition  extends  "to  none  but  office-holders, 
n.  151. 

Person.  No  person,  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector  of  President 
and  Vice-President 

Person.  Eligibility  of  a person  to  be  President  or  Vice-Presi- 
dent of  the  United  States.  (See  Eligibility.) 

Person.  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court 

Person.  No  attainder  of  treason  shall  work  corruption  of  blood 
or  forfeiture  except  during  the  life  of  the  person  attainted. 

This  extends  to  every  manner  *of  person,  n.  223.  The 
definition  is  only  limited  by  other  requirements  of  the 
clause,  notes  223,  224. 

Person.  A person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  autho- 
rity of  the  State  from  which  he  fled,  be  delivered  up,  to 
be  removed  to  the  State  having  jurisdiction  of  the  crime. 
Person  defined  to  mean  every  person,  n.  253. 

Person.  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 

due 

Person  is  limited  in  practice  to  slaves  and  apprentices, 
notes  236,  237. 

Person.  No  person  shall  be  held  to  answer  for  a capital  or  other- 
wise infamous  crime,  unless  on  a presentment  or  indict- 
ment of  a grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service  in 
time  of  war  or  public  danger;  nor  shall  any  person  be 
subject,  for  the  same  offense,  to  be  twice  put  in  jeopardy 
of  life  or  limb ; nor  shall  be  compelled,  in  ^ny  criminal 
case,  to  be  a witness  against  himself;  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor 
shall  private  property  be  taken  for  public  use  without  just 
compensation.  Amendments 


Art.  sec.  cl. 

9 

10 

12  2 
13  3 

13  6 

16  2 

19  8 

2 12 

2 14 

3 3 1 

3 3 2 

4 2 2 

4 2 8 


pp. 

45,  268 
45,  269 

23,  66 
24,77 

2 5,  81 
27,90 

81,152 

32, 164 
34, 167 

38,211 
88,  213 


38, 229 


39,  232 


44,258 


\ 


I 


570 


INDEX. 


Art.  sec.  cL 

Person  here  embraces  both  sexes,  notes  170,  251-256. 

Practically  the  slaves  and  people  of  color  were  excluded, 
n.  253.  The  other  phrases  defined  and  discussed,  notes 
253-263. 

Personal.  The  disability  of  an  alien  to  maintain  a real  action 
is  personal,  n.  210,  p.  204. 

Personal  privilege.  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when,  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require  it T . 1 9 2 

The  power  to  issue  the  writ  is  not  the  privilege;  to  ask 
for  it  is,  n.  140.  See  note  221. 

Personb.  There  are  many  who  believe  that  the  fourteenth  amend- 
ment has  been  ratified,  n.  275,  p.  281.  The  military  dis- 
trict commander  to  protect  persons  and  property  in  the 
rebel  States,  n.  276,  p.  282,  § 3.  All  persons  put  under 
military  arrest  shall  be  tried,  &c.  Id.  § 4.  To  vote  with- 
out distinction  of  race  or  color,  Id.  p.  283,  § 5.  The  persons 
appointed  to  superintend  the  election,  Id.  p.  284,  § 3.  To 
ascertain  the  persons  elected  delegates,  Id.  p.  285,  § 4. 

The  constitutions  to  be  ratified  by  a majority  of  the  per- 
sons registered,  Id.  § 4.  The  commanding  generals  to 
remove  any  persons  who  oppose  reconstruction,  n.  276, 
p.  286,  § 2,  3.  The  acts  of  the  officers  in  removing  persons 
ratified,  n.  276,  p.  287,  § 4.  To  remove  all  persons  who  are 
disloyal  or  who  oppose  reconstruction,  Id.  §4.  The  boards 
of  registration  to  ascertain  the  qualifications  of  persons  to 
vote,  Id.  § 5.  No  person  disqualified  as  a member  of  a 
board  on  account  of  race  or  color,  Id.  All  persons  who 
have  held  civil  offices  disqualified,  n.  276,  pp.  287,  288,  § 6. 

The  registrations  to  be  corrected  as  to  persons  qualified 
and  disqualified,  Id.  § 7.  All  persons.  &c.,  required  to 
take  the  oath  of  office.  Id.  § 9.  The  persons  in  the  second 
section  of  the  fourteenth  amendment  applied  to  free  per- 
sons of  color,  n.  277.  Nearly  four  and  a half  million  of 
these,  n.  277,  p.  289.  Probably  one  hundred  thousand  per- 
sons were  excluded  under  these  acts,  n.  27S.  The  second 
section  of  the  fourteenth  amendment  more  clearly  defines 
who  of  the  persons,  now  citizens,  shall  be  counted  in  the 
basis  of  representation,  n.  2S0.  There  are  persons  who 
claim  the  power  in  Congress  to  prescribe  a rule  of  suffrage, 
notes  18,  41,  280,  n.  274,  p.  275.  Women,  minors,  and  per- 
sons non  compos  mentis  are  citizens,  n.  274,  p.  275.  (See 
CiUzen.)  Estimate  of  the  loss  of  persons  by  the  civil 
war,  n.  278.  The  President’s  views  as  to  the  persons  who 
cannot  take  the  official  oath,  n.  284.  The  effect  of  the 
fourteenth  amendment  upon  such  persons,  n.  285.  The 


issues  in  regard  to  persons  stated,  Id.  p.  293. 

Persons  or  people  of  the  United  States  ordaiu  and  establish  this 

Constitution.  Preamble 

Persons  or  people  of  the  several  States  choose  members  of  House 

of  Representatives  every  second  year 1 2 1 

Persons  or  people  to  be  enumerated  every  ten  years,  in  such  man- 
ner as  Congress  may  by  law  direct 1 2 3 

(See  the  result  of  these  enumerations,  n.  24.) 

Persons  constituting  representative  numbers  to  be  embraced  in 
census  are,  all  free  persons,  those  bound  for  a term  of 
year  s,  Indians  taxed,  and  three-fifths  of  all  other  persons, 

(slaves.) ,4 1 2 3 


This  means  all  except  two-fifths  of  the  slaves  ur.d  the 
Indian  tribes,  n.  24,  p.  68.  Who  to  be  excluded  unless 
they  be  allowed  to  vote,  n.  280. 

Persons  convicted  on  an  impeachment  shall,  nevertheless,  be 
liable  and  subject  to  indictment,  trial,  judgment,  and 

punishment . .... 1 3 7 

(See  Impeachment , notes  39,  40,  194.) 

Persons.  When  the  yeas  and  nays  are  ordered,  the  names  of  per- 
sons (members)  voting  shall  be  entered  on  the  jouri  al.. . . 17  2 

Persons.  The  migration  or  importation  of  persons  (siaves)  shall 


pp. 


30, 140 


22,53 
22,  56 
23, 167 


23,  67 


25,  82 


27,  91 


INDEX, 


571 


not  be  prohibited  prior  to  1808,  but  a tax  or  duty  may  be 
imposed  on  such  importation  not  exceeding  ten  dollars  for 

each  person 

“ Persons11  here  relates  to  imported  Africans,  n.  139. 

Persons  voted  for  as  President  and  Vice-President  to  be  named 
in  the  ballots.  Amendments 

Pinckney,  Charles,  of  South  Carolina.  Signed  the  Constitution, 
pp.  42,  252. 

Pinckney,  Charles  Cotesworth,  of  South  Carolina.  Signed  the 
Constitution,  pp.  42,  252. 

Piracies.  Congress  shall  have  power  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offenses 

against  the  law  of  nations 

“Piracy11  and  “pirate11  defined,  n.  112.  The  punish- 
ment is  death,  n.  111.  Offenses  and  law  of  nations  defined 
and  discussed,  notes,  115,  116. 

Poindexter,  Geo.  Presiding  officer  of  the  Senate,  n.  38,  p.  80. 

Polk,  James  K.  Speaker  of  the  House  of  Representatives,  n.  26. 
President,  n.  166. 

Ports.  No  preference  shall  be  given,  by  any  regulation  of  com- 
merce or  revenue,  to  the  ports  of  one  State  over  those  oi 
another : nor  shall  vessels  bound  to  or  from  one  State,  be 

obliged  to  enter,  clear,  or  pay  duties  in  another 

(See  Preference,  n.  146 ; Vessels,  n.  148.) 

Posterity.  The  Constitution  established  in  order  to  secure  the 
blessings  of  liberty  to  ourselves  and  to  our  posterity. 
Preamble 

Post-Offices  and  post-roads.  Congress  shall  have  power  to  es- 
tablish post-offices  and  porst-roads 

Post-offices  defined,  and  history  of,  n.  105.  Post-roads 
defined,  and  length  of,  n»  106. 

Power  of  Impeachment.  The  House  of  Representatives  shall 

have  the  sole  power  of  impeachment 

(See  Impeachment,  notes  26,  39,  40, 191-194.) 

Power.  Congress  shall  have  power.  (See  Congress.) 

This  power  defined  and  compared  with  other  sections 
and  clauses,  n.  71. 

Power.  The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments  

Power.  The  executive  power  shall  be  vested  in  a President  of 

the  United  States  of  America 

The  executive  power  defined,  and  distinguished  from 
what  is  merely  ministerial,  n.  165.  Why  lodged  in  one 
head,  Id.  List  of  the  Presidents  and  dates  of  service,  n.  166. 

Power.  The  President  shall  have  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States,  except  in 

cases  of  impeachment 

When  this  power  may  be  exercised,  n.  177,  p.  172.  It  is 
unlimited,  and  beyond  the  control  of  Congress  as  to  its 
effect,  n.  177.  p.  173.  Reprieves  and  pardons  defined  and 
discussed,  notes  176,  177. 

Power.  The  power  of  the  President  in  making  treaties,  appoint- 
ments, &c.  (See  President .) 

This  subject  discussed,  notes  179-184. 

Power.  (See  Judicial  Power.} 

Judicial  power  contradistinguished  from  legislative 
and  executive ; defined  and  why  created ; does  not  ex- 
tend to  all  questions,  only  to  cases.  This  explained, 
notes  195, 199. 

Power.  The  judicial  power  of  the*  United  States  shall  not  be  con- 
strued to  extend  to  any  suit,  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments 

What  this  amends,  and  the  effect  thereof,  notes  205 a, 
268. 

Powers  herein  granted  vested  in  Congress.  All  legislative 

(See  Legislafrwe  Power , n.  56 ; Congress , n.  15.) 


Art. 


1 

12 


1 


1 


1 


1 

1 


1 

2 


2 


2 


11 

1 


sec.  ch 
9 1 

1 


8 10 


9 6 


8 7 


2 5 

8 


3 6 

1 1 


2 1 


2 2 
2 1 


1 


pp. 

30, 140 

% 

46,164 


29,124 


31, 150 

22,55 
25, 119 

23,72 

28,94 

25,  S2 
32, 162 


35, 171 


35,174 

37,194 


46,269 
22, 58 


572 


INDEX, 


Powers.  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or 

any  department  or  officer  thereof 

(See  Congress , notes  12S,  274.) 

Powers.  In  case  of  the  inability  of  the  President  to  discharge 
the  powers  and  duties  of  the  office,  the  same  shall  devolve 

on  the  Vice-President 

The  Vice-Presidents  who  have  thus  succeeded  to  the 
Presidency,  n.  172,  p.  170. 

Powers.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

Amendments 

The  powers  defined.  “Delegated”  defined.  “Expressly 
delegated”  not  meant,  n.  269. 

Preference  regarding  ports  of  States.  No  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another ; nor  shall  ves- 
sels bound  to  or  from  one  State  be  obliged  to  enter,  clear, 

or  pay  duties  in  another 

u Preference  ” defined,  n.  149.  The  other  terms  defined, 
notes  146.  147,  148. 

Prejudice  of  claims.  Nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States, 

or  of  any  particular  State .... 

This  was  not  to  exclude  the  claim  of  any  State  to  its 
public  land,  n.  222,  p.  242. 

Present.  No  person  shall  be  convicted  on  an  impeachment  with- 
out the  concurrence  of  two-thirds  of  the  senators  present. 

Present.  The  yeas  and  nays  of  the  members  of  either  house  on 
any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal 

Present.  No  title  of  nobility  shall  be  granted  by  the  United 
States ; and  no  person  holding  any  office  of  profit  or  trust 
under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king, 'prince,  or  foreign  State. .. 

The  prohibition  does  not  extend  to  private  citizens, 
n.  151,  p.  153. 

Presented.  Every  bill,  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary,  &c.,  shall  be  presented  to  the  Presi- 
dent  

(See  j Bill,  notes  66,  69.) 

Prbsentment  of  a grand  jury.  No  person  shall  be  held  to  answer 
for  a capital  or  otherwise  infamous  crime,  unless  on  a pre- 
sentment or  indictment  of  a grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when 
in  actual  service  in  time  of  war  or  public  danger.  Amend- 
ments   

“Presentment,”  “ Indictment,”  and  “Grand  Jury,” 
defined,  n.  253. 

Preberve  the  Constitution.  The  President  of  the  United  States 
shall  take  an  oath  or  affirmation,  to  preserve,  protect,  and 

defend  the  Constitution 

The  President  is  the  only  officer  required  to  take  this 
oath,  n.  174. 

President  of  the  Senate.  (See  Senate  of  the  United  States.) 

President  pro  tempore.  (See  Senate  of  the  United  States.) 

“ Pro  tempore ” defined,  n.  8S.  List  oUthe  presiding 
officers  of  the  Senate,  pp.  78-81. 

President  of  the  United  States.  The  Senate  shall  choose  a Presi- 
dent pro  tempore  when  the  Vice-President  shall  act  as. . . 

President  of  the  United  States  is  tried  by  the  Senate  on  an  im- 
peachment The  chief-justice  shaft  preside,  when  the.... 

President  of  the  United  States.  Every  bill  which  shall  have 


Art.  sec.  ci. 


8 18 


10 


3 6 


8 6 


pp. 

30,138 

34,169 


45,269 


31,150 

39, 238 

25,81 
26, 87 

81, 152 


27,91 

27,98 


44,258 


85, 170 


24,73 
25, 81 


INDEX, 


573 


Art. 

passed  the  House  of  Representatives  and  the  Senate, 
shall,  before  it  become  a law,  be  presented  to  the  Presi- 
dent of  the  United  States;  if  he  approve  he  shall  sign  it, 
if  not,  he  shall  return  it,  with  his  objections,  to  that 
house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to 

reconsider  it.  (See  Bill  ) 1 

See  the  veto  power  discussed,  n.  67. 

President  of  the  United  States.  If  any  bill  shall  not  be  returned 
by  the  President  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return ; in 

which  case  it  shall  not  be  a law.  (See  Bill.) 1 

The  President  should  receive  the  bill  ten  entire  days 
before  the  adjournment,  n.  69. 

President  of  the  United  States.  Every  order,  resolution,  or 
vote,  to  which  the  concurrence  of  the  Senate  and  House 
of  Representatives  may  be  necessary  (except  on  a ques- 
tion of  adjournment),  shall  be  presented  to  the  President 
of  the  United  States,  and,  before  the  same  shall  take  effect, 
shall  be  approved  by  him  ; or,  being  disapproved  by  him, 
shall  be  repassed  by  two-thirds  of  the  Senate  and  House 

of  Representatives.  (See  Resolution.) 1 

When  a joint  resolution  becomes  a law,  n.  70. 

President  of  the  United  States.  The  executive  power  shall  be 
vested  in  a President  of  the  United  States  of  America. 

He  shall  hold  his  office  during  the  term  of  four  years,  and, 
together  with  the  Vice-President,  chosen  for  the  same 

term,  be  elected  as  follows 2 

Electors  appointed.  Each  State  shall  appoint,  in  such 
manner  as  the  legislature  thereof  mfey  direct,  a number 
of  electors  equal  to  the  whole  number  of  senators  and 
representatives  to  which  the  State  may  be  entitled  in  the 
Congress;  but  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States, 

shall  be  appointed  an  elector 2 

The  mode  of  choosing  electors,  n.  167. 

Electors’  proceedings.  The  electors  shall  meet  in  their 
respective  States  and  vote  by  ballot  for  President  and 
Vice-President*  one  of  whom,  at  least,  shall  not  be  an  in- 
habitant of  the  same  State  with  themselves.  They  shall 
name  in  their  ballots  the  person  voted  for  as  President, 
and,  in  distinct  ballots,  the  person  voted  for  as  Vice- 
President;  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  number  of  votes  for  each, 
which  lists  the}'  shall  sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  Amendments..  12 
The  Constitution  before  amendment,  n.  168.  The  acts 
of  Congress  about  the  election. 

Electoral  votes  opened  and  counted.  The  President  of 
the  Senate  shall,  in  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted ; the  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President,  if 
such  number  be  a majority  of  the  whole  number  of  elec- 
tors appointed.  Amendments 12 

Election  by  House  of  Representatives.  And  if  no  per- 
son have  such  majority,  then  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list  of  those 
voted  for  as  President,  the  House  ot  Representatives  shall 
choose,  immediately,  by  ballot,  the  President.  But,  in 
choosing  the  President,  the  votes  shall  be  taken  by.  States, 
the  representation  from  each  State  having  one  vote  : a 
quorum  for  this  purpose  shall  consist  of  a member  or 
members  from  two-thirds  of  the  States,  and  a majority  of 


sec.  cL 


7 2 


7 2 


7 3 


1 1 


1 ? 


3 


PP. 


27,19 


27,91 


27,93 


32,162 


32,164 


46,164 


46,165 


574 


INDEX. 


Art. 

all  the  States  shall  be  necessary  to  a choice.  Amend- 
ments  * 12 

Election  foiling,  the  Vice-President  shall  act.  And  if 
the  House  of  Representatives  shall  not  choose  a President, 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President. 
Amendments 

President  of  the  United  States.  No  person  except  a natural  born  12 
citizen,  or  a citizen  of  the  United  States  at  the  time  of  the 
. adoption  of  this  Constitution,  shall  be  eligible  to  the  office 
of  President;  neither  shall  any  person  be  eligible  to  the 
office  who  shall  not  have  attained  to  the  age  of  35  years, 
and  been  fourteen  years  a resident  within  the  United  States.  2 

The  several  qualifications  defined  and  discussed,  notes 
169,  170, 171. 

President  of  the  United  States.  In  case  of  the  removal  of  the 
President  from  office,  or  of  his  death,  resignation,  or  in- 
ability to  discharge  the  powers  and  duties  of  the  said  office, 
the  same  shall  devolve  on  the  Vice-President;  and  the 
Congress  may,  by  law,  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President  and 
Vice-President,  declaring  what  officer  shall  then  act  as 
President,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed,  or  a President  shall  be  elected  ...  2 

The  acts  of  Congress  for  filling  vacancies,  n.  172,  § 8,  9. 

A list  of  the  Vice-Presidents  who  have  become  Presi- 
dents, n.  172,  p.  170. 

President  of  the  United  States.  The  President  shall,  at  stated 
times,  receive  for  his  services  a compensation,  which  shall 
neither  be  increased  nor  diminished  during  the  period  for 
which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the  United 

States,  or  any  of  them 2 

The  amount  of  salary,  n.  173. 

President  of  the  United  States.  Before  he  enter  on  the  exe- 
cution of  his  office,  he  shall  take  the  following  oath  or  af- 
firmation : — “ I do  solemnly  swear  (or  affirm)  that  I will 
faithfully  execute  the  office  of  President  of  the  United 
States,  and  will,  to  the  best  of  my  ability,  preserve,  pro-, 
tect, and  defend  the  Constitution  of  the  United  States.”..  2 
The  only  officer  required  to  take  this  oath;  what  it 
embraces,  n.  174. 

President  of  the  United  States.  The  President  shall  be  com- 
mander-in-chief of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when 
called  into  the  actual  service  of  the  United  States;  he  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in 
each  of  the  executive  departments,  upon  any  subject  re- 
lating to  the  duties  of  their  respective  offices;  and  he 
shall  have  power  to  grant  reprieves  and  pardons  for 
offenses  against  the  United  States,  except  in  cases  of  im- 
peachment  2 

Need  not  command  in  person.  Extent  of  his  powers, 
u.  175.  The  practice  as  to  opinions.  Respecting  depart- 
ments, n.  176.  u Reprieves  ” defined,  n.  177.  “Pardons” 
defined  and  discussed.  (See  Pardon , n.  77.) 

President  of  the  United  States.  He  shall  have  power,  by  and 
with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  senators  present  con- 
cur; and  he  shall  nominate,  and,  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  appoint  ambassadors, 
other  public  ministers,  and  consuls  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law ; but  the  Congress  may 
by  law  <ost  the  appointment  of  such  inferior  officers,  as 


sec.  cl. 

1 


1 


1 4 


1 5 


1 6 


1 7 


2 1 


pp. 

47, 166 


47,165 


34,167 


34,169 


84,170 


35,170 


85,171 


INDEX, 


575 


Art.  sec. 

they  think  proper,  in  the  President  alone,  in  the  courts  of 

law,  or  in  the  heads  of  departments.' 2 2 

This  advice,  how  giver.,  n.  178.  “Treaties”  defined,  Id. 
p.  175.  “Nominate”  and  “appoint”  defined,  n.  179. 
“Ambassadors,”  defined,  notes  180,  181.  The  effect  of 
these  laws,  n.  182.  Power  of  removal,  n.  184.  The  tenure  of 
office  bill,  n.  184,  p.  179.  (See  Civil  Office.) 

President  of  the  United  States.  The  President  shall  have  power 
to  fill  up  all  vacancies  that  may  happen  during  the  recess 
of  the  Senate,  by  granting  commissions  which  shall 

expire  at  the  end  of  their  next  session 2 2 

This  power  defined  and  discussed,  notes  185,  186. 

President  of  the  United  States.  He  shall,  from  time  to  time, 
give  to  the  Congress  information  of  the  state  of  the  Union, 
and  recommend  to  their  consideration  such  measures  as 
he  shall  judge  necessary  and  expedient;  he  may,  on  extra- 
ordinary occasions,  convene  both  houses,  or  either  of 
them,  and,  in  case  of  disagreement  between  them,  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper ; he  shall  receive 
ambassadors  and  other  public  ministers ; he  shall  take 
care  that  the  laws  be  faithfully  executed,  and  shall  com- 
mission all  the  officers  of  the  United  States 2 2 

Mode  of  giving  information,  n.  187.  Extra  sessions, 
n.  188.  Extent  of  the  power  to  take  care,  n.  189.  The 
power  to  commission,  n.  190. 

President  of  the  United  States.  The  President,  Vice-President, 
and  all  civil  officers  of  the  United  States,  shall  be  removed 
from  office  on  impeachment  for,  and  conviction  of,  treason, 

bribery,  or  other  high  crimes  and  misdemeanors . 2 4 

History  of  the  effort  to  impeach  President  Johnson, 
n.  194.  Cannot  be  impeached  for  political  offenses  merely, 
n.  194,  pp.  187-189.  President  to  assign  district  commanders 
in  the  rebel  States,  n.  286,  p.  282.  § 2.  No  execution  with- 
out the  approval  of,  Id.  § 3.  Law  passed  over  the  Presi- 
dent’s veto,  p.  283.  Copies  of  Constitutions  to  be  sent  to 
the  President,  p.  285,  § 5. 

Press.  Congress  shall  make  no  law  abridging  the  freedom  of 

speech  and  of  the  press.  Amendments 1 

Freedom  defined,  n.  246.  Extent  of  the  freedom  of  the 
press,  n.  247. 

Pretended  authority.  Test  oath  in  regard  to  it,  n.  242,  p.  251. 

Prince.  No  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State. . . 1 9 

“Office”  defined,  n.  151.  The  inhibition  does  not 
extend  to  private  citizens,  n.  151,  p.  153. 

Principal  officer.  The  President  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 

departments 2 2 

These  principal  officers  are  now  the  Secretaries  of  State, 

War,  Navy,  Interior,  Treasury,  the  Postmaster-General, 
and  Attorney-General,  n.  176. 

Private  property.  Nor  shall  private  property  be  taken  for  public 

use,  without  just  compensation.  Amendments 5 

Private  property  defined.  It  includes  all  private 
property.  It  limits  the  general  government,  not  the 
States.  It  is  a great  principle  of  universal  application. 

Public  use  defined,  n.  258.  The  compensation  must  not  be 
doubtful,  n.  59.  The  questions  how  considered.  The 
actual  occupant  of  the  public  lands  is  entitled  to  compen- 
sation, n.  59.  Any  destruction  of  property  is  included,  n.  259. 

Privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when,  in  cases  of  rebellion  or  invasion,  the  public 

safety  may  require  it 1 9 

“ Privilege  ” critically  defined,  notes  140,  220.  It  is  the 
right  to  ask  for  the  writ,  not  to  grant  it,  n.  140. 


cl 

2 


3 


1 


pp. 

85,174 

36.182 

36.183 
36,185 

43, 254 

i 31,152 
35, 171 
44,258 

i 30, 140 


576 


na>Ex 


Art.  Bee. 

Privileged  order  would  destroy  our  form  of  government,  n.  150. 

Privileged.  Senators  and  representatives  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  ue  privi- 
leged from  arrest  during  their  attendance  at  the  session  of 
their  respective  houses,  and  in  going  to  and  returning 

from  the  same 1 6 

Privilege  defined  and  discussed,  n.  3.  It  is  the  privilege 
of  the  house  also,  n.  55.  It  extends  not  only  to  arrests, 
but  the  service  of  civil  summons,  n.  58.  When  it  com- 
mences, n.  59.  To  whom  it  extends,  n.  60.  And  for  how 
long,  n.  57. 

Privileges  and  immunities.  The  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens 

in  the  several  States 4 2 

(See  Citizens,  n.  220.) 

Privileges  and  immunities  defined  and  discussed,  n.  221. 

They  are  in  their  nature  fundamental,  n.  221,  p.  226. 

Copied  from  the  Articles  of  Confederation,  Art.  IV.  p.  10. 

The  extent  of  the  guaranty,  n.  221,  p.  226.  Powers  of 
the  State  over  the  subject,  Id.  and  n.  274.  The  exact  ex- 
tent defined,  n.  222.  The  citizen  cannot  carry  repugnant 
laws  into  a State,  n.  222,  p.  229. 

Proceedings.  Each  house  may  determine  the  rules  of  its  pro- 
ceedings   1 5 

Proceedings.  Each  house  shall  keep  a journal  of  its  proceedings.  1 5 

The  object  of  the  journal,  n.  50. 

Proceedings.  Credit,  proof,  and  effect  of  judicial  proceedings  of 

States 4 1 

Judicial  proceedings  defined,  n.  218.  The  effect  of  judg- 
ments. (See  Judgment,  notes  218,  219.) 

Process  of  law.  Nor  shall  any  person  be  deprived  of  life,  liberty, 

or  property,  without  due  process  of  law.  Amendments..  5 
Due  process  of  law  defined,  n.  257.  Copied  from 
Magna  Charta,  Id.  The  clause  is  a restraint  upon  every 
department  of  the  government,  n.  257,  p.  261. 

Process.  In  all  criminal  prosecutions  the  accused  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor. 

Amendments 6 

Compulsory  process  defined,  n.  261. 

Proclamation.  President  Lincoln’s,  of  April,  1861,  in  regard  to 
the  war  and  blockade,  n.  117.  Suspending  the  writ  of 
habeas  corpus,  n.  141,  p.  143.  Proclaiming  martial  law, 

Id.  Declaring  freedom  to  the  slaves,  n.  274,  p.  278. 

The  effect  of  the  emancipation  proclamation  upon  notes 
given  for  slaves,  Id.  When  it  took  effect  as  to  the  slaves, 

Id.  The  proclamation  of  the  Queen  of  England  acknowl- 
edging the  Confederates  as  belligerents,  n 117.  Of  Presi- 
dent Johnson  as  to  the  status  of  the  Southern  States, 
notes  46,  274,  275,  pp.  281,  282.  Of  William  H.  Seward,  on 
the  13th  amendment,  n.  274,  p.  282.  Proclamations  ad- 
mitting new  States,  n.  230,  p.  237. 

Profit.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
farther  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under 

the  United  States 1 8 

This  clause  defined,  n.  40. 

x rofit.  No  person  holding  an  office  of  trust  or  profit  under  the 

United  States,  shall  be  appointed  an  elector 2 1 

Prohibited  powers.  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the 

people.  Amendments 10 

This  prohibition  discussed  and  compared  with  others, 
notes  71,  138,  269,  274. 

Promote  the  general  welfare.  The  Constitution  established  in 

order  to  promote  the  general  welfare,  &c.  Preamble 

This  object  defined,  n.  11.  Excluded  from  the  Confede- 
rate States  (1  institution,  n.  5.  Discussed  as  a power,  n.  80. 


cl. 


1 


1 


2 

3 


7 

2 


pp. 

26,88 

38, 222 

26,86 

26,87 

38,213 

44,258 

-44,263 


25,82 

32,162 

45, 269 

22,53 


INDEX, 


577 


Proof.  Congress  may,  by  general  laws,  prescribe  the  manner  in 
which  the  acts,  records,  and  judicial  proceedings  of  States 

shall  be  proved,  and  the  effect  thereof 

The  acts  prescribed  upon  the  subject,  n.  219,  pp.  218, 
221,  222.  Judicial  proceedings  proved  by  the  attestation 
of  the  clerk  and  certificate  of  the  judge ; legislative  acts 
by  the  seal  of  the  State,  n.  219,  p.  218.  The  effect  dis- 
cussed, n.  219.  What  the  judge  must  certify,  n.  219, 
p.  219.  The  validity  and  effect  defined,  n.  219,  p.  220.  Re 
cords  not  judicial,  how  proved,  n.  219,  p.  221,  § 1.  Law 
extended  to  the  territories,  n.  219,  p.  222,  § 2. 

Property  of  the  United  States.  The  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory,  or  other  property  belonging  to 

the  United  States 

Territory  means  property,  n.  231,  p.  238.  Subject  dis- 
cussed, Id.  Related  to  the  territory  then  of  the  United 
States,  n.  231,  p.  239.  The  Confederate  States  Constitu- 
tion on  the  subject,  n.  231,  pp.  240,  241,  § 2,  3.  Property 
defined,  n.  232.  Effect  of  the  acquisition  of  territory 
upon  the  inhabitants,  n.  232. 

Property  or  effects.  The  right  of  the  people  to  be  secure  in  their 
effects  against  unreasonable  searches  or  seizures  shall  not 
be  violated.  Amendments 

Property.  Nor  shall  any  person  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law.  Amendments  .... 
(See  Process  of  Law,  n.  257.) 

Property.  Nor  shall  private  property  be  taken  for  public  use 

without  just  compensation.  Amendments 

Private  property  defined,  n.  258.  Relates  to  all  property  ; 
copied  from  Magna  Charta , n.  258.  Public  use  defined,  Id. 
p.  262.  (See  Just  Compensation , n.  259.) 

Propose  amendments.  The  Congress,  whenever  two-thirds  of 
both  houses  shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  States,  shall  call 

a convention  for  proposing  amendments,  &c 

All  the  amendments  have  been  proposed  to  the  legis- 
latures, n.  236. 

Prosecuted.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
* citizens  of  another  State,  or  by  citizens  or  subjects  of  any 

foreign  State.  Amendments 

The  object  of  this  amendment,  notes.  270,  271,  272. 

Prosecutions.  Criminal  prosecutions  against  persons.  (See 

Criminal.')  Amendments 

See  the  subject  discussed,  notes  260-262. 

Protect  the  Constitution.  The  President  of  the  United  States 
shall  take  an  oath  or  affirmation  to  preserve,  protect,  and 

defend  the  Constitution „ 

This  constitutes  him  emphatically  the  protector  of  the 
Constitution,  n.  174.  Protect  is  not  in  the  test  oath, 
p.  242,  p.  252. 

Protect.  The  United  States  shall  protect  each  State  against  in- 
vasion   

Invasion  defined,  notes  133,  234. 

Protector.  The  President  is  the  protector,  guardian,  and  defender 
of  the  Constitution,  n.  174. 

Provide  for  the  common  defense.  The  Constitution  established 
in  order  to  provide  for  the  common  defense,  &c.  Pre- 
amble   

Common  defense  defined,  n.  10.  Omitted  in  the  Confed- 
erate States  Constitution,  n.  5.  Discussed  as  a power,  n.  79. 

Public  acts,  records,  and  judicial  proceedings  of  States,  to  have 

full  faith  and  credit,  &c 

Public  acts,  records,  and  judicial  proceedings  defined, 
n.  218.  (See  Judgments .) 


Art.  sec.  cl. 
4 1 


4 3 2 


4 

5 

5 


5 


11 

6 

2 17 


4 4 


4 1 


pp. 

38, 213 


29,238 


44.257 

44. 258 

44,258 


40, 246 


46,269 
44, 263 

35,170 
39,  242 

22,53 

88,213 


578 


INDEX 


Art. 


Public  danger.  No  State  shall,  without  the  consent  of  Congress, 
engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay 

See  notes  162-164. 

Public  danger.  (See  War.)  Amendments 

Public  debt  of  the  United  States  from  the  foundation  of  the  gov- 
ernment, n.  78,  pp.  97-100. 

Public  debt.  The  validity  of  the,  of  the  United  States  author- 
ized by  law,  including  debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppressing  insurrection 

or  rebellion,  shall  not  be  questioned.  Amendments 

This  clause  discussed,  n.  282. 

Public  ministers.  (See  Appointments — Ambassadors.) 

(See  Ambassadors,  Public,  Ministers,  a/nd  Consuls, 
defined,  n.  188.) 

Public  ministers.  The  President  shall  receive  ambassadors  and 
other  public  ministers 

Public  money.  (See  Money .) 

Public  safety.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or 

invasion,  the  public  safety  may  require  it 

(See  Habeas  Corpus,  notes  140, 141,  pp.  141-146.)  When 
the  President  need  not  obey  a writ  of  habeas  corpus, 
n.  165. 

Public  securities.  All  debts  of  the  United  States  may  be  so 
called,  n.  84. 

Public  trust.  No  religious  test  shall  ever  be  required  as  a quali- 
fication to  any  office  or  public  trust  under  the  United 
States 

Public  use.  Nor  shall  private  property  be  taken  for  public  use 

without  just  compensation.  Amendments 

“Public  use”  defined,  n.  258,  p.  ^62.  (See  “ Private 
Property ,”  n.  258.)  “Just  Compensation”  defined, n.  259. 
The  compensation  must  be  in  money — constitutional  cur- 
rency, n.  259. 

Publish.  The  journal  of  each  house  shall  be  published  from 
time  to  time,  except  such  parts  as  may  in  their  judgment 

require  secrecy 

(See  Journal  ) 

Published.  A regular  statement  and  account  of  the  receipts  and 
expenditures  of  all  public  money  shall  be  published  from 

time  to  time 

(See  Accounts .) 

Punish.  Each  house  of  Congress  may  punish  its  members  for 

disorderly  behavior 

The  power  to  punish  defined  and  discussed,  n.  48.  May 
extend  to  others  besides  members.  Sam  Houston  punished, 
n.  48.  Commanding  generals  to  punish  disturbers  of  the 
peace  and  public  criminals,  n.  276,  p.  282,  § 4. 

Punishment.  Persons  convicted  on  an  impeachment  shall,  never- 
theless, be  liable  and  subject  to  indictment,  trial,  judg- 
ment, and  punishment,  according  to  law 

Punishment.  Congress  shall  have  power  to  provide  for  the  pun- 
ishment of  counterfeiting  the  securities  and  current  coin 

of  the  United  States 

Counterfeiting  defined,  h.  103.  Claimed  as  an  exclusive 
power  in  Congress,  n.  103. 

Punishment.  The  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason 

The  acts  of  Congress  upon  the  subject,  n.  217. 

Punishments.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Amendments .. 

Disfranchisement  is  not  a cruel  punishment,  n.  266;  nor 
fine  and  imprisonment  for  a misdemeanor,  Id.  Cruel  and 
unusual  not  to  be  inflicted  under  the  reconstruction  laws, 
n.  276,  p.  282,  § 4.  Sentence  of  death  not  to  be  inflicted 
without  the  approval  of  the  President,  Id. 


1 

5 


14 

2 


2 

1 

1 


6 

5 


1 


1 

1 


1 

1 


3 


8 


sec.  cl. 


10  8 


4 


2 2 
3 

9 7 

9 2 

3 

5 3 

9 7 

5 2 

3 7 

8 6 

3 2 


pp. 

32, 16. 
44, 258 


46, 280 
35, 174 

36,183 
31, 152 

30,140 


41,  250 
44, 253 


26,87 

81,151 

26,86 


25,  82 
29, 118 

38, 213 

45,267 


INDEX, 


579 


Qualifications  of  a representative  in  Congress  shall  be  25  years 
of  age,  seven  years  a citizen  of  the  United  States,  and 

when  elected  an  inhabitant  of  the  State  he  represents 

States  cannot  superadd  qualifications,  n.  19.  Precedents 
in  regard  to  them,  Id. 

Qualifications  of  a senator  in  Congress  shall  be  30  years  of  age, 
nine  years  a citizen  of  the  United  States,  and  when  elected 

an  inhabitant  of  the  State  he  represents 

Qualifications  to  office.  The  senators  and  representatives  be- 
fore mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be  bound 
by  oath  or  affirmation  to  support  this  Constitution  ; but 
no  religious  test  shall  ever  be  required  as  a qualification  to 

any  office  or  public  trust  under  the  United  States 

See  notes  242,  245. 

Qualifications  of  delegates  in  the  reconstruction  conventions, 
n.  276,  p.  2S3,  § 5. 

Qualifications  for  electors  of  representatives  in  Congress  the 
same  as  for  electors  of  the  most  numerous  branch  of  the 

State  legislature 

Qualifications"  of  its  own  members.  Each  house  of  Congress 
shall  be  the  judge  of  the  elections,  returns,  and  qualifi- 
cations of  its  own  members 

Qualifications  of  senators  and  representatives  discussed 
and  criticised,  n.  46.  The  issues  between  the  President 
and  Congress,  upon  the  subject,  n.  46.  Of  voters  defined, 
n.  16,  p.  59.  In  every  State  of  the  Union  alphabetically 
arranged  n.  17,  pp.  60-65.  Citizenship  not  necessary,  n.  18, 
p.  65.  Of  voters  on  the  reconstruction  laws,  n.  276,  p.  283, 
§ 5.  Supplementary  act,  p.  287,  § 6. 

Qualifications  of  President  United  States.  No  person  except  a 
natural  born  citizen,  or  a citizen  of  the  United  States  at 
the  time  of  the  adoption  of  this  Constitution,  shall  be  eli- 
gible to  the  office  of  President ; neither  shall  any  person 
be  eligible  to  that  office  who  shall  not  have  attained  to  the 
age  of  35  years,  and  been  fourteen  years  a resident  within 

the  United  States 

(See  President , n.  169.) 

Qualifications  of  Vice-President  the  same  as  that  of  President 

of  the  United  States.  Amendments 

Quartered.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner  ; nor  in  time 
of  war,  but  in  a manner  to  be  prescribed  by  law.  Amend- 
ments  

Quartered  defined,  n.  250,  p.  257.  The  owner  defined, 
Id.  The  Declaration  of  Independence  upon,  p.  4. 
Question.  The  yeas  and  nays  of  the  members  of  either  house 
on  any  question  shall,  at  the  desire  of  one -fifth  of  those 

present,  be  entered  on  the  journal 

Question.  On  the  question  of  adjournment  of  the  two  houses,  the 

approbation  of  the  President  is  not  necessary. 

Questioned.  For  any  speech  or  debate  in  either  house,  they 

shall  not  be  questioned  in  any  other  place 

Transferred  from  Articles  of  Confederation,  Art.V.  p.  11. 
Questioned.  The  validity  of  the  public  debt  of  the  United 
States,  &c.,  &c.,  shall  not  be  questioned.  Amendments... 
(See  Public  Debt.) 

Quorum.  A majority  of  each  house  shall  constitute  a quorum  to 
do  business,  but  a smaller  number  may  adjourn  front  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penal- 
ties as  each  house  may  provide  

Quorum  of  £he  House  of  Representatives.  A quorum  (for  the 
election  of  President  by  the  House  of  Representatives) 
shall  consist  of  a member  or  members  from  two -thirds  of 
the  States,  and  a majority  of  all  the  States  shall  be  neces- 
sary to  a choice.  Amendments 


Art.  sec. 


1 2 
1 3 

6 

1 2 
1 5 


2 1 
12 

3 

1 5 

1 7 

1 6 

14  4 

1 5 


12 


cl. 

2 


3 


3 


1 

1 


4 

3 


3 


1 


1 


1 


pp. 

23,  66 

24,  77 

40, 250 

22, 56 
25,84 


34,167 

47,166 

44,256 

26.87 
28, 93 

26.88 

49,280 

25,84 
46, 164 


580 


INDEX 


Art.  sec.  cl. 


Quorum  of  the  Senate.  A quorum  (for  the  election  of  Vice- 
President  by  the  Senate)  shall  consist  of  two-thirds  of 
the  whole  number  of  senators,  and  a majority  of  the 
whole  number  shall  be  necessary  to  a choice.  Amend- 
ments  12 

Ratification.  The  ratifications  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitu- 
tion between  the  States  so  ratifying  the  same j 

Ratification  defined,  n.  242.  The  dates  by  the  respect- 
ive States,  n.  252,  p.  253.  Of  the  Constitutions  of  the 
rebel  States  by  a majority  of  registered  voters,  n.  276, 
p.  2S5. 

Read,  Geokge,  of  Randolph,  Delaware.  Signed  the  Declaration 
of  Independence,  p.  7. 

Rebel  States.  The  grounds  of  excluding  their  delegations  from 
Congress,  n.  46.  Act  to  provide  for  the  government  of, 
n.  276,  p.  2S2  (Caption).  Divided  into  military  districts, 

Id.  §2.  When  the  people  of,  shall  have  formed  constitu- 
tions, n.  274,  p.  283,  § 5.  The  governments  of,  deemed  pro- 
visional, Id.  § 6.  Supplementary  act  in  relation  to,  n.  274, 
p.  283.  Explanatory  section,  Id.  § 1.  Registration  of 
voters  in,  Id.  All  elections  in,  to  be  by  ballot,  p.  286, 

§ 1.  Relative  to  the  rebel  States,  n.  284,  p.  286,  Preamble. 

Their  governments  were  subject  to  military  authority, 
n.  284,  p.  286,  § 1.  Power  to  remove  officers  of  their  govern- 
ments, Id.  § 2,  p.  2S7,  § 3,  4,  p.  288,  § 8.  Duties  of  the 
boards  of  registration  in  the,  explained,  n.  287,  § 5.  The 
disqualification  as  to  voters  in,  explained,  Id.  § 6.  All  the 
acts  interpreted  liberally,  Id.  § 11.  Appropriations  for, 
p.  288.  The  objects  of  the  acts  explained,  notes  277-285. 

The  status  of  their  inhabitants  during  the  rebellion,  notes 
46, 117, 118.  Their  Confederacy  was  not  a d c facto  govern- 
ment, notes  211,  212,215.  The  examples  in  history,  n.  235. 

Virginia,  North  Carolina,  South  Carolina,  Georgia,  Mis- 
sissippi, Alabama,  Louisiana,  Florida,  Texas,  and  Arkan- 
sas, declared  to  be  rebel  States,  n.  276,  pp.  282,  286. 

Divided  into  military  districts,  n.  276,  p.  282,  § 1. 

The  President  to  assign  commanders  to  the  districts, 

Id.  3.  The  duty  of  the  commanders  to  protect  persons 
and  property,  to  suppress  insurrections,  &c.,  Id.  § 3. 

Persons  under  military  arrest  to  be  tried  without 
delay,  Id.  § 4.  How  the  people  are  to  frame  and  ratify 
their  Constitutions,  Id.  p.  283,  § 5.  To  ratify  the  four- 
teenth constitutional  amendment,  Id.  The  exclusion  1 
from  the  polls  and  from  office,  Id.  § 5,  6.  The  govern- 
ments all,  declared  provisional,  Id.  § 6.  The  first  supple- 
mentary act  in  regard  to  the  rebel  States,  n.  276,  p.  283, 

§ 1.  The  oath  of  the  voters,  Id.  p.  284.  When  and  by  whose 
orders  the  elections  to  be  held,  Id.  § 2.  To  vote  for  or 
against  a convention,  Id.  § 3.  The  boards  of  registration 
appointed  and  subsequent  action,  n.  276,  p.  2S5,  § 4.  What  14  4 

vote  requisite  to  the  ratification  of  the  Constitution,  Id. 

§ 5.  Expenses,  how  paid,  p.  276,  § 7,  8.  “Article”  con- 
strued to  mean  section,  Id.  § 9.  Second  supplementary  14  4 

act  in  regard  to  the  rebel  States,  n.  276,  p.  286.  Explana- 
tory as  to  the  legality  of  their  governments,  Id.  § 1.  The 
power  of  the  commanders  to  remove  or  suspend  from 
office,  Id.  § 2.  The  general  of  the  armies  invested  with 
full  power,  n.  276,  p.  287,  § 3.  Confirmation  and  further 
powers  of  removal,  Id.  § 4.  Powers  of  the  boards  of 
registration  in  ascertaining  qualifications,  p.  2S7,  §5.  Ex- 
planatory as  to  disqualifications,  Id.  § 6.  Time  for  regis- 
tration extended,  p.  2S8,  § 7.  The  commanding  general  1 9 

may  change  the  boards,  Id.  § 8.  Oath  of  the  boards,  § 9. 

Not  bound  by  the  opinions  of  civil  officers,  Id.  § 10.  The 
acts  to  be  construed  liberally,  Id.  § 11.  Appropriations  for 
expenses,  n.  276,  p.  2S8,  § 1.  The  registered  voters  under  2 


9 2 


pp. 

47,166 

41,252 


30, 140 

49,  2S0 
48, 2S0 

81, 151 


2 8 86,182 


INDEX, 


581 


these  acts,  n.  278.  Compared  with  the  vote  of  1860,  Id. 
The  action  of  the  conventions,  Id.  p.  29.  (See  Rebellion , 
Reconstruction.) 

Rebellion.  The  effects  of,  upon  the  States  and  the  people. 
Pref.  p.  xiii.  How  it  affects  the  qualifications  of  senators 
and  members  of  Congress,  n.  46.  During  the,  it  was  a 
state  of  war,  n.  117.  Is  a civil  war,  Id.  The  cotton  cap- 
tured during  the,  was  lawful  prize,  n.  118,  p.  129.  The 
army  at  the  close  of,  was  one  million  of  men,  n.  124. 
Synonymous  with  insurrection,  n.  132,  p.  135.  The  militia 
called  forth  to  suppress  it,  n.  135.  The  effects  of  the 
President’s  pardon  of,  n.  174,  p.  174.  History  of  some  of 
the  States  in  regard  to,  n.  255.  Results  of,  as  to  slavery 
and  reconstruction,  notes  274-2S6. 

Rebellion.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or 

invasion,  the  public  safety  may  require  it  

(See  Privilege,  n.  140 ; Habeas  Corpus,  n.  141.)  Sus- 
pended during  the  rebellion  of  the  Southern  States, 
n.  141,  p.  143,  § 1.  The  Proclamation  suspending,  n.  141, 
pp.  143, 144.  (See  Writ,  notes  140,  141.) 

Rebellion.  The  debts  incurred  for  payment  of  pensions  and 
bounties  for  services  in  suppressing  insurrection  or  rebel- 
lion, shall  not  be  questioned 

But  neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrec- 
tion or  rebellion 

Remarks  upon  this  section,  n.  282.  The  amount  of  the 
Confederate  debt,  n.  282.  Oath  that  he  has  not  been  dis- 
franchised for  participation  in  any  rebellion,  n.  276,  p.  284. 
When  the  right  to  vote  is  denied  except  for  participation 
in  the  rebellion.  Art.  XIV.  § 2,  note  thereon,  n.  281. 
Rebels.  The  effect  of  the  President's  pardon  of,  n.  174,  p.  174. 
Receipts  and  expenditures.  A regular  statement  and  account  of 
the  receipts  and  expenditures  of  all  public  money  shall  bo 

published  from  time  to  time 

Recess  of  the  Senate.  The  President  shall  have  power  to  fill  up 
all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions,  which  shall  expire  at  the 

end  of  their  next  session 

This  power  controlled  by  the  tenure  of  office  law,  n.  284, 
p.  ISO,  § 5.  The  Constitution  explained,  n.  185. 
Recommend  to  Congress.  The  President  shall  from  time  to  time 
recommend  to  the  consideration  of  Congress  such  mea- 
sures as  he  shall  judge  necessary  and  expedient 

Reconsidered.  Bills  returned  with  objections  by  the  President 
of  the  United  States  to  be  reconsidered  by  the  two 
houses  of  Congress,  and  if  approved  by  two-thirds  of 

both  houses,  shall  become  a law 

Reconsidered.  Any  order,  resolution,  or  vote,  returned  with  ob- 
jections by  the  President,  may  be  reconsidered,  and  re- 
passed by  two-thirds  of  both  houses 

Reconstruction.  The  effect  of  the  acts  upon  the  independent 
power  of  the  houses,  n.  46.  The  President's  vetoes  of 
what  are  called  the  reconstruction  acts,  n.  67.  The  efforts 
to  impeach  the  President  for  his  course  in  regard  to,  n.  194. 
Summary  as  to  that  course,  n.  94.  His  intimation  as  to 
his  right  to  resist,  n.  239.  The  several  acts  commonly 
called  the  reconstruction  laws,  n.  276.  The  failure  of 
the  court  to  take  jurisdiction  of  the  subject,  n.  276. 
p.  281.  The  terms  imposed  by  President  Johnson  as  con- 
ditions of,  n.  276,  p.  281.  The  purpose  to  establish  loyal 
and  State  governments,  n.  276,  p.  282.  The  terms  of  res- 
toration, n.  276,  p.  283,  § 5.  Until  then  they  are  pro- 
visional governments,  Id.  § 6.  Mode  of  registration  and 
practice,  Id.  p.  284,  § 1-9.  The  local  governments  placed 
subject  to  the  military  commanders,  n.  276,  p.  286.  The 
President's  opposition  to  those  laws,  n.  284.  (See  Rebel 
States , n.  276.) 


Art.  sec.  cl. 


2 3 1 

17  2 

17  3 


pp. 


86,183 

27,91 

28,93 


582 


INDEX, 


Art.  sec. 

Records.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings,  of  every 
other  State  ; and  the  Congress  may,  by  general  laws,  pre- 
scribe the  manner  in  which  such  acts,  records,  and  pro- 
ceedings, shall  be  proved,  and  the  effect  thereof 4 1 

Records  defined,  n.  218,  p.  213.  Act  of  Congress  for 
proving  judicial  records,  n.  219,  § 1.  For  proving  records 
not  judicial,  n.  219,  p.  221,  § 1.  Civil,  law  deeds,  how 
proved,  Id.  The  act  extended  to  the  Territories,  n.  219, 
p.  222,  § 2. 

Redress  of  grievances.  Congress  shall  make  no  law  abridging 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a redress  of  grievances. 

Amendments , 1 

(See  G't'iexiances.) 

Reed,  J oseph,  of  Pennsylvania.  Signed  Articles  of  Confederation, 

p.  21. 

Regulate.  To  coin  money  and  regulate  the  value  thereof,  and  of 

foreign  coin  1 8 

See  a history  of  the  regulations,  n.  99.  To  fix  is  to 
regulate,  n.  100. 

Regulation.  No  person  held  to  service  or  labor,  escaping  into 
another  State,  shall,  in  consequence  of  any  law  or  regu- 
lation of  such  State,  be  discharged  from  such  service  or 

labor 4 2 

(See  j Fugitives,  &c.,  notes  223-228.) 

Regulations.  If  a prisoner  be  held  by  any,  habeas  corpus  sus- 
pended as  to,  n.  141,  p.  143. 

Regulations  for  the  election  of  senators  and  representatives. 

(See,  Senators.) 1 4 

Regulations.  The  Supreme  Court  shall  have  appellate  jurisdic- 
tion in  certain  cases,  both  as  to  law  and  fact,  with  such 
exceptions,  and  under  such  regulations  as  the  Congress 
shall  make 3 2 

Regulations.  The  Congress  shall  have  power  to  dispose  of,  and 
make,  all  needful  rules  and  regulations  respecting  the  ter- 
ritory and  other  property  belonging  to  the  United  States.  4 3 

Regulations  of  the  post-office  department,  n.  106. 

Religion.  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof. 

Amendments 1 

Religion  defined,  n.  245.  The  object,  Id.  No  restraint 
on  the  States,  n.  245,  p.  255.  All  sects  tolerated,  Id.  The 
Christian,  is  not  a part  of  the  common  law,  Id. 

Religion.  Against  all  force  or  attacks  made  against  the  States  on 
account  of  religion,  sovereignty,  trade,  or  any  other  pre- 
tence, Confed.  Art.  III.  p.  9. 

Religious  test.  No  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 

States 6 

In  the  sense  of,  25  Stat.  Charles  II.  n.  242,  p.  251 

Remedy.  Laws  which  only  affect  the,  do  not  impair  contracts, 
n.  161.  But  the  validity  and  remedy  may  be  inseparable, 
n.  157  p.  156. 

Removal.  The  commanding  generals  of  military  districts  may 
remove  State  officers  in  the  rebel  States,  n.  276,  p.  286, 

§ 2.  The  commanding  general  may  remove  when.  Id.  p.  287, 

§ 3.  Removals  approved  and  authorized,  Id.  § 4. 

Removal.  Judsment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 

the  United  States  1 8 

Doubtful  if  it  can  be  less,  n.  40.  Touches  neither  per- 
son nor  property,  n.  40. 

Removal.  In  case  of  the  removal  of  the  President  from  office,  it 

shall  devolve  on  the  Vice-President 2 1 

On  what  Vice-Presidents  the  office  has  devolved,  n.  172, 
p.  170. 


cl. 


1 


5 


3 


1 


2 


3 


7 

5 


pp. 

38*213 

43,254 

29,114 

39,232 

22,56 

87,209 
39,  238 

43,254 

40,250 

25,52 

84,169 


INDEX, 


583 


Removal.  In  case  of  removal,  both  of  the  President  and  Vice- 
President,  the  Congress  may  by  law  provide,  declaring 

what  officer  shall  then  act  as  President 

The  act  of  Congress  providing  for  the  case,  n.  172,  § 8,  9. 

Removed  from  office.  All  civil  officers  of  the  United  States  shall 
be  removed  from  office  on  impeachment  for,  and  convic- 
tion of,  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors  

(See  Civil  Officers , n.  191.;  Crimes — Misdemeanors — 
Impeachment , notes  192-194.) 

Representation.  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  thereof  shall  issue  writs  of 

election  to  fill  them 

Pull  note  upon  this  subject,  n.  25. 

Representation.  When  the  rebel  States  shall  be  entitled  to, 
n.  276,  p.  2S2,  § 5.  Until  so  entitled  all  civil  governments 
to  be  considered  provisional,  Id.  § 6.  (See  Rebel  States.) 

Representation.  But  when  the  right  to  vote  shall  be  denied  to 
any  class,  Ac.,  the  basis  of  representation  shall  be  reduced 

in  proportion,  Ac 

Note  upon  this  section,  n.  281. 

Representative.  No  person  shall  be  a representative  unless 
25  years  old,  been  seven  years  a citizen  of  the  United 
States,  and,  when  elected,  an  inhabitant  of  the  same  State. 
(See  Qualifications , n.  46.) 

Representative  numbers  include  all  free  persons,  those  bound  to 
service  for  a term  of  years,  Indians  taxed,  and  three-fifths 
of  all  other  persons  (slaves),  all  to  be  enumerated  every 

ten  years,  Ac 

(See  Amendments , Art.  14,  § 2,  p.  279.) 

Representative.  No  senator  or — shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased  during  such  time : and  no  person  holding 
any  office  under  the  United  States  shall  be  a member  of 

either  house  during  his  continuance  in  office 

(See  Office.) 

Representative.  No  representative  shall  be  appointed  an  elec- 
tor of  President  or  Vice-President  of  the  United  States. . 

Representatives.  No  person  shall  be  a senator  or  repre- 
sentative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a member  of  Congress,  or  as 
any  officer  of  the  United  States,  or  as  a member  of  any 
State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a vote  of  two-thirds  of 

each  house,  remove  such  disability 

Comments  upon  this  section,  notes  276,  281. 

Representatives.  Congress  shall  consist  of  a Senate  and  House 
of  representatives 

Representatives.  Members  of  the  House  of  Representatives  to 
be  chosen  every  second  year  by  the  people 

Representatives  in  Congress.  Qualifications  of  electors  of 
representatives  in  Congress  the  same  as  for  electors  of 
the  most  numerous  branch  of  the  State  legislature.  

Representatives  and  direct  taxes  to  be  apportioned  among  the 
States  according  to  theii  respective  numbers 

Representatives  shall  not  exceed  one  for  every  80,000,  but  each 
State  shall  have  at  least  one  representative 

Representatives  allowed  in  first  Congress  for  each  of  the  thir- 
teen States 

For  each  of  the  thirty-three  States,  by  the  census  of  1860, 
n.  24,  pp.  68.  69. 

42 


Art.  sec.  cl. 


2 15 

2 4 

12  4 

14  2 

12  2 

12  3 

16  2 
2 12 


14  3 

1 1 

12  1 

12  1 
12  3 

12  3 

12  3 


pp. 

34,169 

36, 153 
23,72 

48,279 

23, 66 

23,  67 


27, 90 
32,164 


279 

*22, 56 
■22, 56 

•22,  56 
23, 67 ' 
23, 67 

23,67 


584 


INDEX 


* 


Art.  sec.  cl. 


Representatives.  The  House  of  Representatives  shall  choose 

their  Speaker  and  other  officers 1 

Representatives.  The  House  of  Representatives  shall  have  the 

sole  power  of  impeachment 1 

Representatives.  The  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives  shall  he  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  the 
Congress  may,  at  any  time,  by  law.  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators. . 1 

Representatives.  The  House  of — 

Shall  be  the  judge  of  the  elections,  returns,  and  qualifi- 
cations of  its  own  members 1 

A majority  thereof  shall  constitute  a quorum  to  do 
business  ; blit  a smaller  number  may  adjourn  from  day  to 
day,  and  may  be  aitthorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penal- 
ties, as  that  house  may  provide  1 

May  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concur- 
rence of  two-thirds,  expel  a member 1 

Shall  keep  a journal  of  its  proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  parts  as  may,  in 
their  judgment,  require  secrecy  ; and  the  yeas  and  nays  of 
the  members  on  any  question  shall,  at  the  desire  of  one- 

fifth  of  those  present,  be  entered  on  the  journal 1 

Shall  not,  during  the  session  of  Congress,  without  the 
consent  of  the  Senate,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses 

shall  be  sitting 1 

Representatives.  The  Senators  and — 

Shall  receive  a compensation  for  their  services,  to  be 
ascertained  by  law,  and  paid  out  of  the  Treasury  of  the 

United  States 1 

They  shall,  in  all  cases  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  saute ; and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  ques- 
tioned in  any  other  place 1 

Representatives.  All  bills  for  raising  revenue  shall  originate  in 
the  House  of  Representatives;  but  the  Senate  may  pro- 
pose, or  concur  with,  amendments,  as  on  other  bills 1 

Representatives.  Every  bill,  order,  resolution,  or  vote  (except 
on  a question  of  adjournment),  originating  in  either  house 
of  Congress,  shall  be  presented  to  the  President  of  the 
United  States.  (For  proceedings  see  Bill — Resolution.)..  1 

Representatives  in  Congress,  and  members  of  State  legislatures, 
shall  be  bound  by  oath  or  affirmation,  to  support  this 

Constitution 6 

Reprieves.  The  President  shall  have  power  to  grant  reprieves..  2 
Reprieves  defined,  n.  177. 

Reprisal.  Congress  shall  have  power  to  grant  letters  of  marque 

and  reprisal  1 

Reprisal  defined  and  discussed,  n.  121.  This  power 
•was  in  Coogress  under  the  Confederation,  Art  IX.  p.  14. 
Reprisal.  No  State  shall  grant  letters  of  marque  and  reprisal. ..  1 

Because  this  is  a national  power,  n.  152. 

Republican.  The  United  States  shall  guarantee  to  every  State  in 

this  Union,  a republican  form  of  government 4 

Republican  defined,  n.  233,  p.  243.  A government  of 
the  people,  Id. 

Republican  governments  in  the  rebel  States.  To  enable  the  rebel 
States  to  establish  republican  governments,  n.  256.  p.  282, 
preamble.  Inquiry  as  to  whether  Maryland  has,  n.  46.  (See 
Rebel  States.) 

Reserved  rights.  (See  Retained  Rights.)  Amendments.  ....  9 

Reserved  powers.  The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  tho 


10 


2&3 


8 11 


pp, 

23,72 
23,  72 

25.83 

25.84 

25,84 
26, 86 

26,78 
26, 88 
26,88 

26,88 

27. 90 

27.91 

40,250 

35,171 

29, 127 

81,153 

89, 242 

45,  2bS 


INDEX, 


585 


Art.  sec. 

States,  are  reserved  to  the  States,  respectively,  or  to  the 

people.  Amendments 10 

The  powers  not  delegated  are  retained,  notes  89,  269, 
p.  10T. 

Reserving  to  the  States.  Congress  shall  have  power  to  provide 
for  organizing,  arming,  and  disciplining  the  militia,  and 
governing  such  part  as  may  be  in  thS  service  of  the  United 
States,  reserving  to  the  States  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according 

to  the  discipline  prescribed  by  Congress 1 8 

(See  Militia.') 

Residence  of  fourteen  years  within  the  United  States  requisite  in 
eligibility  of  a person  to  the  office  of  President  or  Vice- 
President  of  the  United  States 2 1 

Resignation.  Vacancies  by  resignation  of  senators  may  be  filled 

by  the  executive  of  a State  in  recess  of  legislature 1 8 

The  seat  is  vacated,  before  notice  that  the  resignation  is 
accepted,  yi.  32. 

Resignation.  In  case  of  the  resignation  of  the  President,  the 

office  shall  devolve  on  the  Vice-President,  &c 2 1 

Resolution.  Every  order,  resolution,  or  vote,  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a question  of  adjournment),  shall 
be  presented  to  the  President  of  the  United  States,  and,, 
before  the  same  shall  take  effect,  shall  be  approved  by 
him ; or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 

case  of  a bill.  (See  Bills.) 1 7 

When  a resolution  becomes  a law,  joint  and  concurrent, 
n.  70.  A joint,  submitting  the  14th  amendment,  n.  276, 
p.  278. 

Retained  rights.  The  enumeration,  in  the  Constitution,  of  cer- 
tain rights,  shall  not  be  construed  to  deny  or  disparage 


others  retained  by  the  people.  Amendments 9 

Returned.  Bills,  resolutions,  &c.,  not  approved,  to  be  returned 

by  the  President  to  the  house  in  which  they  originated..  1 7 

Returned.  Bills,  resolutions,  &c.,  not  returned  within  ten  days, 

Sundays  excepted,  to  become  laws  unless  Congress  ad- 
journ   1 7 

The  President  must  have  ten  entire  days,  n.  69. 

Returns.  Each  house  shall  be  the  jud^fe  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members 1 5 

Returns  defined,  n.  46. 

Revenue.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose, 

or  concur  with,  amendments,  as  on  other  bills 1 7 

Revenue  defined,  n.  65. 

Revenue.  No  preference  shall  be  given,  by  any  regulation  of 
commerce  or  revenue,  to  the  ports  of  one  State  over  those 
of  another 1 9 

Rhode  Island.  Signed  the  Declaration  of  Independence,  p.  7. 

One  of  the  Confederation,  p.  9.  Signed  the  articles  thereof 
p.  21.  Rule  of  suffrage,  n.  17. 

Rhode  Island  and  Providence  Plantations.  Entitled  to  one  repre- 
sentative in  first  Congress 1 2 


Two  by  the  census  of  1860,  n.  24.  Assigned  to  first  judicial 
circuit,  n.  197.  Ratified  the  thirteenth  constitutional 
amendment,  n.  274;  and  the  fourteenth,  n.  275. 

Right.  The  habeas  corpus  is  a writ  of,  n.  141. 

Right  of  Congress.  Because  of  the  thirteenth  amendment,  to 
pass  the  civil  rights  law,  n.  274,  p.  273. 

Right  of  conscience.  (See  Religion .) 

Right  of  the  people.  Congress  shall  make  no  law  abridging  the 
right,  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a redress  of  grievances.  Amend- 
ments  1 

The  people  used  in  the  broadest  sense,  n.  248. 

i 


cl. 


16 


4 

2 


5 


8 


2 

2 

1 


1 


6 


3 


Pl>. 

45, 269 

29,136 

34*167 

24,76 

34,169 

28,93* 

* 

45,  268 
27, 91 

27,  91 

25,84 

27,90 

31,150 

23, 67 


43,254 


586 


INDEX 


Art.  sec. 

Eight  of  the  people.  A well-regulated  militia  being  necessary  to 
the  security  of  a free  State,  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed.  Amend- 
ments  2 

Eight  of  the  people.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated ; and  no  war- 
rants shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized. 
Amendments 4 

Right  of.  (See  Life — Liberty — Property '.) 

Ricyrr  of  evidence  and  defense  in  criminal  prosecutions.  (See 
Criminal.') 

Eight  of  trial  by  jury.  In  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of 
trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a 
jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  common 
law.  Amendments 7 

Eights.  When  acquired  under  existing  law  there  is  no  power  to 
take  them  away,  n.  257,  p.  260.  The  great  absolute,  of 
property,  n.  25S.  The  commanders  of  military  districts 
to  protect  the  rights  of  persons  and  property,  n.  276, 
p.  2S2,  § 3. 

Eights.  Exclusive  rights  to  writings  and  discoveries  may  be  se- 
cured to  their  authors  and  inventors  for  a limited  time. . . 1 8 

(See  Authors  and  inventors , notes  107,  10S.) 

Eights  of  domestic  security.  No  soldier  shall,  in  time  of  peace, 
be  quartered  in  any  house  without  the  consent  of  the 
owner,  nor  in  time  of  war,  but  in  a manner  to  be  pre- 


scribed by  law.  Amendments. . . 3 

Rights.  The  enumeration,  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people.  Amendments 9 


These  certain  rights  defined,  n.  268. 

Eights.  A naturalized  citizen  possesses  all  the,  of  a native 
citizen,  n.  93.  And  this  right  of  naturalization  was 
accorded  to  Congress,  Id.  The  right  of  the  naturalized 
citizen  takes  effect  from  birth,  n.  274,  p.  276.  The  rights 
of  owners  of  slaves  after, emancipation,  n.  274,  pp.  277,  27 S, 

Roads.  Congress  shall  have  jVower  to  establish  post-offices  and 

post-roads 1 8 

(See  Post-offices  and  Post-roads , notes  104-106.)  Post- 
roads defined,  n.  106.  The  number  of  miles  of,  n.  105. 

Roberdeau,  Daniel,  of  Pennsylvania.  Signed  Articles  of  Con- 
federation, p.  21. 

Rodney  Caesar,  of  Delaware.  Signed  the  Declaration  of  Inde- 
pendence, p.  7, 

Ross,  George,  of  Pennsylvania.  Signed  Declaration  of  Inde- 
pendence, p.  7. 

Ross,  James.  Presiding  officer  of  the  Senate,  n.  38,  p.  78. 


Rule.  An  uniform  rule  of  naturalization 1 8 

Rules  of  proceedings.  Each  house  of  Congress  may  determine 

the  rules  of  its  proceedings 1 5 

Rules  concerning  captures.  Congress  shall  have  power  to  make 

rules  concerning  captures  on  land  and  water  1 8 

This  power  existed  in  the  Congress  of  the  Confedera- 
tion, Art.  IX.  p.  14. 

Rules  and  articles  of  war.  Congress  shall  have  power  to  make 
rules  for  the  government  and  regulation  of  the  land  and 

naval  forces ' 1 8 

Rules  of  the  common  law.  No  fact  tried  by  a jury  shall  beother- 
' wise  re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law.  Amend- 
ments  T 

(See  Common  Law.) 


cl. 


8 


7 


4 

2 

11 


14 


pp. 

43,256 


44,257 


45,  2C6 


29, 121 


44,256 


45,  268 


29, 119 


2S,  112 
26,  SG 
29,127 


29, 133 
45.266 


INDEX, 


587 


Art.  sec.  cl. 

Runaway  slaves,  or  persons  held  to  service  or  labor,  and  fugi- 
tives from  justice,  shall  be  delivered  up,  &c 4 2 2&3 

(See  Fugitive , notes  223,  224,  225.) 

Rush,  Benjamin,  of  Pennsylvania.  Signed  the  Declaration  of 
Independence,  p.  7. 

Rutledge,  Edward,  of  South  Carolina.  Signed  Declaration  of 
Independence,  p.  8. 

Rutledge,  John.  Chief- Justice  and  Associate  Justice  of  the 
Supreme  Court,  n.  197,  pp.  192,  193. 


Science  and  useful  arts.  Congress  shall  have  power  to  promoto 
the  progress  of  science  and  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the  exclusive 

right  to  their  respective  writings  and  discoveries 1 8 8 

Science  defined  and  distinguished  from  art,  n.  107,  p.  122. 

Science  teaches  us  to  know,  art  to  do,  n.  107,  p.  122. 

Scudder,  Nathaniel,  of  New  Jersey.  Signed  the  Articles  of 
Confederation,  p.  21. 

Searches  and  seizures.  The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects  against  un- 
reasonable searches  and  seizures  shall  not  be  violated,  and 
no  warrant  shall  issue  but  upon  probable  cause,  supported 
by  oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be 

seized.  Amendments 4 

Searches  are  always  unreasonable  when  without  au- 
thority of  law,  n.  251. 

B^at  of  government.  Neither  house,  during  the  session  of  Con- 
gress, shall,  without  the  consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting 1 5 4 

Seat  of  government.  Congress  shall  have  power  to  exercise  ex- 
clusive legislation  in  all  cases  whatsoever,  over  such  dis- 
trict (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  States,  and  the  acceptance  of  Congress,  be- 
come the  seat  of  the  government  of  the  United  States, 
and  to  exercise  like  authority  over  all  places  purchased  by 
consent  of  the  legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 

dock-yards,  and  other  needful  buildings 1 8 17 

(See  District  of  Colivmbia.) 

Seat  of  government  of  the  United  States.  The  list  of  electoral 
votes  for  President  and  Vice-President  shall  be  transmit- 
ted, sealed,  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  president  of  the  Senate.  Amend- 


ments   12 

Seats  of  senators.  Terms  at  which  the  seats  of  the  several 

classes  of  senators  shall  be  vacated 1 2 2 

Secession  and  nullificatitfh  had  the  same  poisonous  root,  Pref.  p.  vii. 

Secrecy.  Each  house  of  Congress  shall  keep  a journal  of  its  pro- 
ceedings, and  from  time  to  time  publish  the  same, 
excepting  such  parts  as  may  in  their  judgment  require 
secresv 1 5 3 


Secretaries  of  different  departments  constituting  cabinet  of  the 
President,  n.  176. 

Secretaries  of  War,  of  the  Treasury,  of  the  Interior,  Ac., 
hold  their  offices  how  long,  n.  184,  p.  179,  § 1. 

Secretary  of  State.  Proclamation  about  thirteenth  consti- 
tutional amendment,  n.  274.  Action  of,  on  fourteenth 
amendment  and  views  in  regard  to  same,  n.  275. 

Secretary  of  the  Treasury.  Report  of  public  debt,  n.  78. 

Secretary  of  the  Senate,  at.  the  close  of  each  session  to  deliver  to 
the  Secretary  of  the  Treasury,  Ac.,  a full  list  of  the  per- 
sons nominated  and  rejected,  n.  184,  p.  180,  § 7. 

Secretary  of  the  Treasury.  Report  of.  on  the  national  debt,  n.  78, 
p.  99.  Holds  his  office  during  the  Presidential  term,  n.  184, 
p.  179,  § 1.  Secretary  of  the  Senate  to  report  to  the  Secre- 
tary of  the  Treasury  a list  of  officers,  n.  184,  p.  180,  § 7. 


pp. 

38,229 


29,121 


44,257 


26,88 


30, 136 


24,76 

26,87 


588 


INDEX. 


« 


President  to  notify  the  Secretary  of  the  Treasury  of  desig- 
nations, &c.,  Id.  p.  181,  § 8. 

Secure  the  blessings  of  liberty.  The  Constitution  established 
to  secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, &c.  Preamble 

What  liberty  was  intended  to  be  secured,  n.  12.  How 
it  was  attained,  Id. 

Secure.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 

and  seizures,  shall  not  be  violated.  Amendments 

(See  Houses , Searches.) 

Securities.  Congress  shall  have  power  to  provide  for  the  punish- 
ment of  counterfeiting  the  securities  and  current  coin  of 
the  United  States 

Security  of  a free  State.  A well  regulated  militia  being  neces- 
sary to  the  security  of  a free  State,  the  right  of  the  people 
to  keep  and  bear  arms  shall  not  be  infringed.  Amend- 
ments   

(See  Militia.') 

Sedgwick,  Theodore.  Speaker  of  the  House  of  Eeps,  n.  26. 

Seizures.  The  right  of  the  people  to  be  secure  against  un- 
reasonable seizures  shall  not  be  violated.  (See  Searches.) 

Amendments 

Searches  and  seizures  are  always  unreasonable  'when 
not  authorized  by  law,  n.  257. 

Senate.  It  is  intended  to  be  a permanent  body  with  perpetual 
existence,  n.  31.  How  it  might  come  to  an  end,  Id. 

Senate  and  House  of  Representatives.  The  Congress  of  the  United 
States  shall  consist  of  a Senate  and  House  of  Representa- 
tives   

The  Senate  ought  to  be  first  defined,  n.  15. 

Senate  and  House  of  Representatives.  (See  Congress.) 

Senate.  The  Senate  shall  be  composed  of  two  senators  from 
each  State,  chosen  by  the  legislature  for  six  years,  and 

each  senator  shall  have  one  vote 

The  subject  considered,  n.  28.  The  decisions  on 
elections,  n.  29.  The  law  for  electing,  n.  30. 

Senate.  The  Vicd-President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  vote  unless  they  be 

equally  divided 

List  of  Vice-Presidents,  n.  37. 

Senate.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  presi- 
dent of  the  United  States 

List  of  Presidents,  pro  tempore , n.  3S. 

Senate.  The  Senate  shall  have  the  sole  power  to  try  all  im- 
peachments; when  sitting  for  that  purpose  they  shall  be 
on  oath  or  affirmation.  ’ When  the  President  of  the  United. 
States  is  tried,  the  Chief- Justice  shall  preside;  and  no 
person  shall  be  convicted  without  the  concurrence  of  two- 

thirds  of  the  members  present 

(See  Impeachment , notes  39,  40, 194.) 

Senate.  The  judgment  of  the  Senate,  in  cases  of  impeachment, 
shall  not  extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  an  office  of  honor,  trust, 
or  profit  under  the  United  States,  but  the  party  convicted 
shall,  nevertheless,  be  liable  and  subject  to  indictment, 
trial,  judgment  and  punishment,  according  to  law 

Senate  of  the  United  States.  The  Senate  shall  be,  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own 
members;  a majority  shall  constitute  a quorum  to  do 
business,  but  a smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner,  and  under  such  penal- 
ties, as  that  house  may  provide 

(See  Qualifications  ',  n.  40.) 

Senate.  The  Senate  may  determine  the  rules  of  its  proceedings, 


Art.  sec.  cl. 


4 

1 8 
2 

4 

1 1 
18  1 
18  4 

13  5 

13  6 

18  7 

15  1 


pp. 

22,53 

44,257 
29, 118 
43,25 

44,257 


22,58 

24,74 

24.77 

24.78 

25.81 

25. 82 
25,84 


INDEX, 


589 


punish  its  members  for  disorderly  behavior,  and,  with  the 

concurrence  of  two-thirds,  expel  a member 

Senate.  The  Senate  shall  keep  a journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts 
as  may,  in  their  judgment,  require  secrecy;  and  the  yeas 
and  nays  of  the  members,  on  any  question,  shall,  at  the 
desire  of  one-fifth  of  those  present,  be  entered  on  the 

journal 

Senate.  The  Senate  shall  not,  during  the  session  of  Congress, 
without  the  consent  of  the  House  of  Representatives, 
adjourn  for  more  than  three  days,  nor  to  any  other  place 

than  that  in  which  the  two  houses  shall  be  sitting 

Senate.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives  ; but  the  Senate  may  propose,  or  con- 
cur with,  amendments,  as  on  other  bills.  (See  Bills.) .... 
Senate.  Every  bill,  order,  resolution  and  vote  (except  on  a 
question  of  adjournment),  originating  in  either  house  of 
Congress,  shall  be  presented  to  the  President  of  the 

United  States i 

fFor  proceedings,  see  Bill — Resolution.) 

Senate.  Action  of  Senate  on  bills,  resolutions,  orders,  and  votes. 
(See  Bills , &c.) 

Senate.  The  President  shall  have  power,  by  aDd  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur  ; and  he  shall  nomi- 
nate, and,  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors,  other  public  ministers, 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law.  But  the  Congress  may,  by  law,  vest  the 
appointment  of  such  inferior  officers  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 

heads  of  departments 

(See  President ,) 

Senate.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 

their  next  session 

See  the  subject  discussed,  n.  185.  The  law  upon  the 
subject,  n.  184 

Senate.  The  President  may,  on  extraordinary  occasions,  con- 
vene both  houses  of  Congress,  or  either  of  them 

Senate.  No  State,  -without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate ...  

Senate.  The  lists  of  votes  of  electors  of  President  and  Vice- 
President  shall  be  directed  to  the  president  of  the  Senate. 

Amendments 

Senate.  The  president  of  the  Senate  shall,  in  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certifi- 
cates of  the  electors  of  President  and  Vice-President  of 

the  United  States.  Amendments  

Senate.  If  no  person  have  a majority  of  bjpie  electoral  votes  as 
Vice-President,  then,  from  the  two  highest  numbers  on 
the  list  the  Senate  shall  choose  the  Vice-President;  a 
quorum  for  the  purpose  shall  consist  of  two-thirds  of  the 
whole  number  of  senators,  and  a majority  of  the  whole 
number  shall  be  necessary  to  a choice.  Amendments. . . . 

Senator,  Each  senator  shall  have  one  vote 

Senator.  No  person  shall  be  a senator  who  shall  not  have 
attained  the  age  of  30  years — been  nine  years  a citizen  of 
the  United  States,  and,  when  elected,  an  Inhabitant  of  the 

State  for  which  he  shall  be  chosen  

Senator  or  representative.  No  senator  or  representative  shall, 
during  the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created,  or  the  emoluments  whereof 
shall  have  been  increased  during  such  time ; and  no  per- 


Art.  sec.  cl. 
15  2 

15  3 

15  4 

17  1 

1 7 2&3 


2 2 2 

2*  2 3 

2 3 

5 

12  1 

12  1 

\ 

12  1 

18  1 

13  3 


pp. 

26,86 

26,87 

26,  S3 

27. 90 

27.91 


35, 174 

36, 182 

136, 133 
40, 246 

46,164 

46,164 

47, 166 
24,  74 

24,  77 


590 


INDEX 


Art.  sec. 

son  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office..  1 6 

(See  Qualifications,  notes  35,  46.) 

Senatob.  No  senator  shall  be  appointed  an  elector  of  President 

or  Vice-President  of  the  United  States 2 1 

Disqualification  of.  (See  Representatives.')  Amend- 
ments  14  3 

Senatobs.  The  Senate  of  the  United  States  shall  be  composed  of 

two  senators  from  each  State 1 3 

Senatobs.  Two  senators  shall  be  chosen  by  the  legislature  of 

each  State  for  six  years T 1 3 

Senatobs  divided  as  nearly  as  may  be  into  three  classes  after  the 
first  election.  The  seats  of  the  first  class  vacated  at  the 
expiration  of  the  second  year.  The  seats  of  the  second 
class  vacated  at  expiration  of  the  fourth  year.  The  seats 
of  the  third  class  vacated  at  expiration  of  the  sixth  year ; 

so  that  one-third  may  be  chosen  every  second  year 1 8 

Senatobs.  If  vacancies  happen  in  seats  of  senators,  by  resigna- 
tion or  otherwise,  during  the  recess  of  the  legislature  of 
any  State,  the  executive  thereof  may  make  temporary  ap- 
pointments until  next  meeting  of  the  legislature,  which 

shall  then  fill  such  vacancies  * 1 3 

(See  Classification , n.  34.) 

Senatobs.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each 
State  by  the  legislature  thereof ; but  the  Congress  may, 
at  any  time,  by  law,  make  or  alter  such  regulations,  ex- 
cept as  to  the  places  of  choosing  senators 1 4 

Senatobs  and  representatives  shall  receive  a compensation  for 
their  services,  to  be  ascertained  by  law,  and  paid  out  of 

the  treasury  of  the  United  States 1 6 

They  shall.,  in  all  cases  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any  speech 
or  debate  in  either  house  they  shall  not  be  questioned  in 


any  other  place 1 6 

Senatobs  of  the  lijited  States  shall  be  bound  by  oath  or  affirma- 
tion to  suj^)ort  the  Constitution  of  the  United  States  ...  6 

Sebvice.  Persons  bound  to  service  for  a term  of  years  included' 

in  representative  numbers 1 2 

Sebvice  of  the  United  States.  The  Congress  shall  have  power  to 
provide  for  governing  such  parts  of  the  militia  as  may  be 

employed  in  the  service  of  the  United  States 1 8 

Sebvice  of  the  United  States.  The  President  shall  be  commander- 
in-chief  of  the  militia  of  the  several  States,  when  called 

into  the  actual  service  of  the  United  States 2 2 

Sebvice  or  labor.  (S ee  Slaves- -Fugitives.)  4 2 


Sebvice.  No  person  shall  be  held  to  answer  for  a capital  or  other- 
wise infamous  crime,  unless  on  a presentment  or  indict- 
ment of  a grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service 
in  time  of  war  or  public  danger.  Amendments 5 

Sebvices.  The  senators  and  representatives  shall  receive  a com- 
'ensation  for  their  services,  to  be  ascertained  by  law,  and 

paid  out  of  the  treasury  of  the  United  States 1 6 

(See  Compensation . n.  53.) 

Sebvices.  The  President  shall,  at  stated  times,  receive  for  his 

services  a compensation,  &c 2 1 

(See  President , n.  173.) 

Sebvices.  The  judges,  both  of  the  supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall,  at 
stated  times,  receive  for  their  services  a compensation 
which  shall  not  be  diminished  during  their  continuance  in 
office 8 1 

Session  of  Congress.  (See  Meeting.) 

Session.  The  Congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  or  session  shall  be  on  the  first  Monday 


cl. 

2 

2 


1 

1 


2 


2 


1 

1 


1 

3 

3 

16 

1 

3 


1 

6 


1 


pp. 

27,90 

32, 164 
49, 279 
24,74 
24,74 


24,7b 

24,76 


25,83 

26,88 


26,  8S 
40,250 
23,  67 

29, 185 

35,172 
39, 232 


44,253 
26, 83' 
84, 170 


86,189 


/ 


INDEX. 


Art. 

in  December,  unless  they  shall  by  law  appoint  a different 

day 1 

(See  Congress,  n.  43,  for  the  act  fixing  sessions.) 

Session.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  houses  shall  be  sitting 1 

Session.  Senators  and  representatives  shall,  in  all  cases  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  sessions  of  their  re- 
spective houses,  and  in  going  to  and  returning  from  the 

same 1 

(See  Arrest— Privilege.) 

Session  of  the  Senate.  The  President  shall  have  power  to  fill  up 
all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at 


the  end  of  their  next  session 2 

Seward,  William  H.  Secretary  of  State,  n.  274.  p.  272. 

Sherman,  William  T.  Lieutenant-General  in  the  United  States 
Army,  n.  124. 

Ships  of  war.  No  State  shall,  without  the  consent  of  Congress, 

keep  ships  of  war  in  time  of  peace 1 

Signed.  Every  bill,  resolution,  order,  or  vote,  approved,  shall  be 

signed  by  the  President 1 


Signed.  Any  bill,  resolution,  &c.,  not  returned  within  ten  days, 

to  become  a law  as  if  it  had  been  signed  by  the  President.  1 
Signers  of  the  Declaration  of  Independence,  pp.  7,  8;  of  the 
Articles  of  Confederation,  p.  21 ; of  the  Constitution  of 
the  United  States,  pp.  41,  42,  252,  viz.: — George  Washing- 
ton, President  and  Deputy  from  Virginia.  John  Lang- 
don,  Nicholas  Gilman,  New  Hampshire.  Nathaniel  Gor- 
ham, Rufus  King,  Massachusetts.  William  Samuel  John- 
son, Roger  Sherman,  Connecticut.  Alexander  Hamilton, 
New  York.  William  Livingston,  David  Brearley,  William 
Paterson,  Jonathan  Dayton,  New  Jersey.  Benjamin 
Franklin,  Thomas  Mifflin,*  Robert  Morris,  George  Clymer, 
Thomas  Fitzsimmons,  Jared  Ingersoll,  James  Wdlson, 
Gouverneur  Morris,  Pennsylvania.  George  Reed,  Gun- 
ning Bedford,  Jr.,  John  Dickinson.  Richard  Bassett,  Jacob  . 
Broom,  Delaware.  James  McHenry,  Dan.  of  St. 
Thomas  Jenifer,  Daniel  Carroll,  Maryland.  John  Blair, 
James  Madison,  Jr.,  Virginia.  William  Blount,  Richard 
Dobbs  Spaight.  Hugh  Williamson,  North  Carolina.  John 
Rutledge,  Charles  C.  Pinckney,  Charles  Pinckney,  Pierce 
Butler,  South  Carolina.  William  Few,  Abraham  Bald- 
win, Georgia.  Attest:  William  Jackson,  Secretary. 

Silver.  No  State  shall  make  any  thing  but  gold  and  silver  coin 

* a tender  in  payment  of  debts 1 

Slavery.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or 

any  place  subject  to  their  jurisdiction.  Amendments 13 

This  amendment  trenches  directly  upon  the  power  of 
the  States  and  the  people  of  the  States,  n.  274,  p.  273.  It 
changed  the  government  to  one*  of  freedom.  Id.,  and  pp. 

276,  277,  285.  It  gave  the  right  to  pass  the  civil  rights  bill,  Id. 
p.  273.  And  made  citizens  of  those  who  before  were  slaves, 

Id.  p.  275.  What  the  several  States  only  could  have  done, 
Congress  has  done  by  this  amendment,  Id.  p.  276.  Its 
effect  was  to  abolish  slavery  wherever  it  existed  in  the 
United  States,  n.  274,  p.  277.  And  it  carried  along  the 
right  to  protect  the  freedmen  by  all  necessary  legislation, 
p.  277.  It  did  not  affect  obligations  given  for  slaves  be- 
fore the  manumission,  Id.  pp.  277,  278 

Slaves.  Three-fifths  of  all  slaves  included  in  representative 

numbers 1 

Slaves.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  snail 


sec.  cl. 
4 2 


5 4 


6 1 


2 3 


10  3 

7 2 

7 2 


10  1 
1 


2 3 


591 

pp. 

25,  83 

26,88 

26,88 

36, 182 

32,161 
27, 91 
27,  91 


31,158 
48,  271 


23,67 


592 


ENDEX, 


Art.  sec. 

not  be  prohibited  by  the  Congress  prior  to  the  year  1808, 
but  a tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person 1 9 

Slaves.  No  person  "held  to  service,  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due 4 2 

Slaves.  No  amendment  made  prior  to  1808  shall  prohibit  the 

importation  of  persons  (or  slaves) 5 

Soldier.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
wa»*  but  in  a manner  to  be  prescribed  by  law.  Amend- 
ments  3 

Soldier  and  quartered  defined,  n.  250.  Collections  of 
them  into  armies,  n.  125.  The  right  to  enlist  minors,  Id. 
Limitation  of  the  power  to  vote  supplies  for  them,  n.  127. 

The  militia  are  the  national  soldiers,  n.  130.  The  power  of 
martial  law  over  them,  n.  134.  The  right  to  try  them  by 
military  law.  n.  255. 

South  Carolina.  Signed  the  Declaration  of  Independence,  p.  8. 

One  of  the  Confederation,  p.  9.  Signed  the  articles  thereof 
p.  21.  Signed  the  Constitution  of  the  United  States, 
pp.  42.  252.  Rule  of  suffrage  in,  n.  17,  p.  64. 

South  Carolina.  Entitled  to  five  representatives  in  first  Congress.  1 2 

To  four  by  the  census  of  1860,  n.  24,  p.  69.  Population 
through  each  decade,  n.  24,  pp.  69-70.  Attempted  nullifi- 
cation by,  Pref.  p.viii.  and  n.  144.  Did  not  vote  in  the  Presi- 
dential election  of  1864,  n.  167.  Assigned  to  fifth  judicial  cir- 
cuit, n.  197,  p/192.  Ratified  the  thirteenth  constitutional 
am.ndment,  n.  274.  Refused  to  ratify  the  fourteenth, 
n.  275.  Declared  one  of  the  rebel  States,  n.  276,  pp.  282, 286. 

Its  provisional  government  defined,  n.  276,  p.  286.  Regis- 
tered voters  of,  n.  278,  p.  289. 

Spaight,  Richard  Dobbs,  of  North  Carolina.  Signed  this  Con- 
stitution, pp.  42,  252. 

Speaker  and  other  officers.  The  House  of  Representatives  shall 

choose  their  Speaker  and  other  officers 1 2 

Speaker  defined,  n.  26.  List  of  Speakers,  n.  26,  p.  73. 

"When  the  Speaker  becomes  President,  n.  172,  § 8. 

Speech.  Senators  and  representatives,  for  any  speech  or  debate  in 

either  house,  shall  not  be  questioned  in  any  other  place..  1 6 

Limitation  of  this  privilege,  n.  61. 

SPEEcn.  Congress  shall  make  no  law  abridging  the  freedom  of 

speech.  Amendments 1 

“ Freedom  ” defined,  n.  246. 

Stanbery.  Henry.  Attorney- General  of  the  United  States, 
n.  197,  p.  192. 

Standard.  Congress  shall  have  power  to  fix  the  standard  of 

weights  and  measures  1 8 

“Fix”  defined.  “Standard”  defined,  n.  101.  Weights 
and  measures;  metric  system ; act  of  Congress  authorizing 
metric  system,  n.  102.  (See  Weights  and  Measures.') 

State  of  the  Union.  The  President  shall,  from  time  to  time,  give 
to  the  Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient 2 8 

State.  A representative  in  Congress  shall  be  an  inhabitant  of 

the  State  in  which  he  shall  be  chosen 1 2 

“ Inhabitant  of  the  State  ” defined,  r..  20. 

State.  Each  State  shall  have  at  least  one  representative  in  Con- 
gress   1 1 2 

State.  When  vacancies  happen  in  the  representation  from  a 
State,  the  executive  thereof  shall  issue  writs  of  election  to 
fill  them 1 2 

State.  The  Senate  of  the  United  States  shall  be  composed  of  two 

senators  from  each  State,  chosen  by  the  legislature  thereof  1 8 


cl. 

1 


3 


3 


5 


1 


5 


1 

2 

8 

4 

1 


pp. 


30,140 


39,  232 
40,246 

44,256 


28,  67 


23, 92 

26,88 

43, 254 

> 

29,114 


86,183 
28, 66 

23,  67 

28,72 

24, 74 


INDEX, 


593 


State. 

State. 

State. 

State. 

State. 

State. 

State. 


State. 

State. 

State. 

State. 

State. 


State. 

State. 


If  vacancies  happen  in  seats  of  senators,  by  resignation  or 
otherwise,  during  the  recess  of  the  legislature  of  any  State, 
the  executive  thereof  may  make  temporary  appointments, 
until  the  next  meeting  of  the  legislature,  which  shall  then 

fill  such  vacancies 

A senator  in  Congress  shall  be  an  inhabitant  of  the  State 

for  which  he  shall  be  chosen 

The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may,  at 
any  time,  by  law,  make  or  alter  such  regulations,  except 

as  to  the  places  of  choosing  senators 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 

State *. 

No  preference  shall  be  given,  by  any  regulation  of  com- 
merce or  revenue,  to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to  or  from  one  State  be 

obliged  to  enter,  clear,  or  pay  duties  in  another 

No  State  shall  enter  into  any  treaty,  alliance,  or  confeder- 
ation; grant  letters  of  marque  and  reprisal ; coin  money  ; 
emit  bills  of  credit;  make  any  thing  but  gold  and  silver 
coin  a tender  in  payment  of  debts,;  pass  any  bill  of  at- 
tainder, ex- post  facto  law,  or  law  impairing  the  obligation 

of  contracts,  or  grant  any  title  of  nobility 

No  State  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws ; and  the  net  produce  of  all  duties  and  imposts,  laid 
by  any  State  on  imports  or  exports,  shall  be  for  the  use  of 
the  Treasury  of  the  United  States ; and  all  such  laws  shall 

be  subject  to  the  revision  and  control  of  the  Congress 

No  State  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of 
peace,  enter  into  any  agreement  or  compact  with  another 
State,  or  with  a foreign  power,  or  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not 

admit  of  delay. 

(For  the  extent  of  these  inhibitions  on  the  States,  see 
Articles  of  Confederation , Art.  YI.  p.  11.) 

Each  State  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  the  electors  of  President  and 

Yice-President  of  the  United  States.  (See  Election.') 

The  judicial  power  shall  extend  to  controversies  to  which 
the  United  States  shall  be  a party ; to  controversies 
between  two  or  more  States ; between  a State  and  citizens 
of  another  State ; between  citizens  of  different  States  ; 
between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States;  and  between  a State,  or  the 
citizens  thereof,  and  foreign  States,  citizens,  or  sub- 
jects   

(See  Judicial  Power.) 

In  all  cases  in  which  a State  shall  be  a party,  the  Supreme 

Court  shall  have  original  jurisdiction 

The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury  ; and  such  trial  shall  be  held  in  the  State 
where  the  said  crimes  shall  have  been  committed ; but 
when  not  committed  within  any  State,  the  trial  shall  be 
at  such  place  or  places  as  the  Congress  may  by  law  have 

directed 

(See  Crimes.) 

Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and  pro- 
ceedings shall  be  proved,  and  the  effect  thereof . . 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges 

and  immunities  of  citizens  in  the  several  States 

(See  Citizens — Privileges— Immunities,  notes  220,  221.) 


Art.  sec.  cl, 


1 S 

1 3 

1 4 

1 9 

1 9 


1 10 


1 10 


1 10 
2 1 


3 2 1 

3 2 2 


3 2 


4 11 

4 2 1 


pp. 

24.76 

24. 77 

25, 83 

31. 150 

81. 150 
31, 153 

32,161 

32,161 

82,164 

37,194 

37,204 

37, 209 

88,  213 
38,222 


594 


INDEX, 


State. 

State. 

State. 

State. 

State. 

State. 

State  ] 

State. 

State. 

State. 

State. 

STATE8. 

States. 

States. 

States 


Art.  sec. 

A person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  dee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority 
of  the  State  from  which  he  fled,  be  delivered  up  to  be  re- 
moved to  the  State  having  jurisdiction  of  the  crime 4 2 

No  person  held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 

party  to  whom  such  service  or  labor  may  be  due 4 2 

(See  Fugitives — Escape.) 

The  Congress  snail  have  power  to  dispose  of,  and  make 
all  needful  rules  aDd  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claim  of  the  United  States,  or  of  any  par- 


ticular State 4 3 

The  United  States  shall  guarantee  to  every  State  in  this 
Union  a republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion,  and,  on  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature  can- 
not be  convened),  against  domestic  violence 4 4 

State  defined,  n.  233,  p.  242. 

No  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5 

The  judges  in  every  State  shall  be  bound  by  the  Consti- 
tution, laws,  and  treaties  of  the  United  States,  any  thing 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 

notwithstanding 6 

egislatures.  The  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  or 

affirmation  to  support  this  Constitution 6 

(See  Oath , n.  242.) 

A well-regulated  militia  being  necessary  to  the  security 
of  a free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed  Amendments  2 


In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed;  which  district  shall  have  been  previously 

ascertained  by  law.  Amendments 6 

In  choosing  the  President  (by  the  House  of  Representa- 
tives), the  vote  shall  be  taken  by  States,  the  representa- 
tives from  each  State  having  one  vote : a quorum  for  this 


purpose  shall  consist  of  a member  or  members  from  two- 
thirds  of  the  States,  and  a majority  of  all  the  Slates  shall 

be  necessary  to  a choice.  Amendments 12 

The  electors  shall  meet  in  their  respective  States  and 
vote,  by  ballot,  for  President  and  Vice-President,  one  of 
whom  at  least  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves.  Amendments 12 


Declared  free  and  independent,  p.  6.  Articles  of  per- 
petual union  between,  pp.  S-9.  Each  retained  its  sove- 
reignty, Art.  I.  p.  9.  Entered  into  a firm  league.  Art. 

Ill  p.  9.  The  rights  of  the  people  of  the  different  States, 

Art.  IV.  p.  10.  Rendition  and  records,  Id.  To  choose 
delegates,  Art.  V.  p.  10.  Inhibitions  upon,  Art.  VI.  p.  12. 

To  supply  a common  treasury.  Art.  VIII.  p.  13. 

Ilepresentatives  in  Congress  to  be  chosen  every  two 

years  by  the  people  of  the  States 1 2 

The  people  defined  and  discussed,  n.  16.  The  qualifica- 
tions of  voters  in  each,  alphabetically  arranged,  n.  17. 

Representatives  and  direct  taxes  to  be  apportioned 
among  the  several  States  according  to  their  respective 

numbers 1 2 

entitled  to  representatives  in  the  first  Congress  were : 

New  Hampshire,  3 ; Massachusetts,  8;  Rhode  Island  and 


cl. 


2 


2 


1 


2 

3 


1 


1 


1 


8 


pp. 

38,  229 
39, 232 

39,238 

39, 242 
40;  2** 

40,247 

40,250 

43,  256 

44,  268 

• 

46,164 

46,164 

22,56 
23,  67 


INDEX, 


595 


Providence  Plantations,!;  Connecticut,  5;  New  York,  6; 
New  Jersey,  4 ; Pennsylvania,  8;  Delaware,!;  Maryland, 
6;  Virginia,  10;  North  Carolina,  5;  South  Carolina,  5; 

Georgia,  3.  Whole  number,  65. 

States.  Congress  shall  have  power  to  regulate  commerce  among 

the  several  States  and  with  the  Indian  tribes 

(See  Commerce.') 

States.  Congress  shall  have  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of 
the  United  States,  reserving  to  the  States  respectively  the 
appointment  of  the  officers,  and  the  authority  of  training 
the  militia  according  to  the  discipline  prescribed  by  Con- 
gress   

States.  Congress  shall  have  power  to  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever,  over  such  district  (not  exceed- 
ing ten  miles  square)  as  may,  by  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  seat  of 
the  government  of  the  United  States ; and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other 

needful  buildings 

The  District  was  ceded  by  Virginia  and  Maryland,  n.137. 
(See  District  of  Columbia.) 

States.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  Congress  prior  to  the  year  1808,  but  a 
tax  or  duty  may  be  imposed  on  such  importation  not  ex- 
ceeding ten  dollars  for  each  person 

States.  The  President  shall  not  receive,  during  the  time  for 
which  he  shall  have  been  elected,  any  emolument  from 

any  of  the  States 

/tates.  The  President  shall  be  commander-in-chief  of  the 
militia  of  the  several  States  when  called  into  the  actual 

service  of  the  United  States 

states.  New  States  may  be  admitted  by  the  Congress  into  this 
Union ; but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State ; nor  any  State 
be  formed  by  the  junction  of  two  or  more  States,  or  parts 
of  States,  without  the  consent  of  the  legislatures  of  the 

States  concerned,  as  well  as  of  the  Congress 

(See  New  States , notes  229,  230.)  For  a list  of  the  new 
States,  with  dates  of  admission,  see  note  230. 

States.  The  Congress,  whenever  two-thirds  of  l oth  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  applications  of  the  legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a convention  for 
proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes  as  part  of  this  Constitu- 
tion, when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  States,  or  by  conventions  in  three-fourths 

thereof 

(See  Amendments , notes  236,  244,  274,  275-286.) 

States.  The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution 

between  the  States  so  ratifying  the  same 

(See  Ratification . n.  243.) 

States.  The  Constitution  adopted  in  convention  by  the  unani- 
mous consent  of  the  deputies  from  all  the  States  present, 
the  17th  day  of  September,  a.  d.  17S7,  and  of  the  Inde- 
pendence of  the  United  States  of  America  the  twelfth; 
the  following  States  being  represented : — New  Hamp- 
shire, Massachusetts,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South  Carolina,  Georgia. 

States.  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 


Art.  sec.  cl. 

12  3 

18  3 

1 8 16 

1 8 17 

19  1 

2 16 

2 2 1 

4 3 1 

5 

7 


pp. 


23,  67 
28, 105 


29, 135 


30,136 


30, 140 

34.170 

35. 171 

39, 234 


40,  246 
41,252 


596 


INDEX, 


1 


Art  see.  cl. 

served  to  the  States,  respectively,  or  to  the  people. 

Amendments 10 

See  this  power  discussed,  n.  269. 

States.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit,  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State.  Amendments 11 

States.  The  thirteenth  amendment  trenches  directly  upon  the 
powers  of  the  States  and  people,  n.  274,  p.  273.  It  has 
done  what  the  several  States  only  could  have  one,  n.  274, 
p.  276. 

Stockton,  John  P.,  of  New  Jersey.  Ousted  from  his  seat  in  the 
Senate  because  of  the  mode  of  election,  n.  29,  p.  75. 

Stockton,  Richard,  of  New  Jersey.  Signed  the  Declaration  of 
Independence,  p.  7. 

Stone,  Thomas,  of  Maryland.  Signed  the  Declaration  of  Inde- 
pendence, p,  7. 

Subjects.  The  judicial  power  shall  extend  to  all  cases  between 
a State,  or  the  citizens  thereof,  and  foreign  States,  citizens, 

or  subjects 3 2 1 

(See  Judicial  Power,  n.  205a.) 

Subjects  of  any  foreign  State.  The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law 
or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States,  by  citizens  of  another  State,  or  by  citizens 


or  subjects  of  any  foreign  State.  Amendments 11 

See  this  amendment  explained,  notes  205a,  271. 

Suffrage.  No  State,  without  its  consent,  shall  be  deprived  of  its 

equal  suffrage  in  the  Senate 5 


Suits.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved;  and  no  fact  tried  by  a jury  shall  be 
otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law.  Amend- 
ments..  7 

See  notes  263,  265. 

Suits.  The  judicial  power  of  the  United  States  shall  nut  be  con- 
strued to  extend  to  any  suit,  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

State.  Amendments 11 

This  article  defined  and  discussed,  n.  270. 

Sundays  excepted.  Ten  days  allowed  the  President  to  return  a 

bill,  resolution,  &c 1 7 2 

There  must  be  ten  entire  days,  n.  69. 

Support  the  Constitution.  The  senators  and  representatives 
before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall  be  bound 
by  oath  or  affirmation  to  support  this  Constitution,  &c. . . 6 1 8 

And  to  swear  allegiance  to  the  government,  &c.  (see 
Test  Oath),  n.  242.  Congress  has  the  right  to  superadd  to 
the  oath,  Id. 

Supreme  Court.  Congress  shall  have  power  to  constitute  tribunals 


inferior  to  the  Supreme  Court 1 8 9 

Supreme  Court.  (See  Appointment  of  Judge*  of  &c.) 2 2 2 


Supreme  Coukt.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish. The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  6hall,  at 
stated  times,  receive  for  their  services  a compensation 
which  shall  not  be  diminished  during  their  continuance 

in  office 3 1 

Supreme  Court  defined,  n.  195.  p.  190.  It  has  original 
jurisdiction  in  but  two  classes  of  cases,  Id. 

Supreme  Court.  In  all  cases  affecting  ambassadors,  other  publio 


PP 

45.269 

46. 269 


38, 211 

46,  269 
40, 246 

45, 266 

46, 269 
27,  %\ 

40  250 

29, 124 
35,174 

86, 180 


INDEX, 


597 


Art.  sec.  el 

ministers,  and  consuls,  and  those  in  which  a State  shall  be 
a party,  the  Supreme  Court  shall  have  original  jurisdiction. 

In  all  the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions,  and  under  such  regulations,  as 

the  Congress  shall  make 3 2 2 

Its  original  jurisdiction  is  exclusive,  n.  219.  Original 
jurisdiction  defined  and  discussed,  n.  219,  p.  205.  Appel- 
late jurisdiction  defined,  n.  211.  It  can  only  be  conferred 
by  Congress,  n.  211,  p.  207. 

Supreme  law  of  the  land.  (See  Constitution — Laws — Treaties.')  6 2 

Swayne,  Noah  H.  Associate  Justice  of  the.  Supreme  Court, 
n.  197. 


Taney,  Roger  B.  Chief-Justice  of  the  Supreme  Court,  n.  197, 
p.  192. 

Tax.  A tax  or  duty  on  imported  persons  (slaves)  might  have 
been  imposed  up  to  1808 

Tax.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken 

Tax.  No  amendment  made  prior  to  1808,  shall  in  any  manner 
affect  the  1st  and  4th  clauses  of  the  9th  section 

Tax.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State 

Taxed.  Indians  not  taxed  excluded  from  representative  numbers. 
Also  by  Article  XIV.  n.  275. 

Taxes,  direct,  defined,  notes  22,  144.  How  apportioned,  notes  93, 
94.  Taxes  defined,  n.  72.  The  power  to  lay,  n.  73. 

Taxes.  Representative  and  direct  taxes  to  be  apportioned  among 

the  States  according  to  their  respective  numbers 

Direct  taxes,  see  n.  22. 

Taxes.  Congress  shall  have  power  to  lay  and  collect  taxes 

Taxes  under  this  power  defined  and  discussed,  notes  72, 
73.  It  is  co-extensive  with  the  territory  of  the  United 
States,  n.  73. 

Taylor,  George,  of  Pennsylvania.  Signed  Declaration  of  Inde- 
pendence, p.  7. 

Taylor,  John  W.  Speaker  of  the  House  of  Representatives, 
n.  26. 

Taylor,  Zachary.  President  of  the  United  States,  n.  166. 

Tazewell,  Henry.  President  of  the  Senate,  pro  tempore , n.  38, 
p.  78. 

Tazewell,  Littleton  W.  President  of  the  Senate,  pro  tempore , 
n.  38,  p.  80. 

Telfair,  Edward,  of  Georgia.  Signed  the  Articles  of  Confed- 
eration, p.  21. 

Tender.  No  State  shall  make  any  thing  but  gold  and  silver  coin  a 

tender  in  payment  of  debts 

Remarks  upon  this  clause,  n.  152.  Congress  may  make 
other  things  than  gold  and  silver  a legal  tender,  notes  83, 
84,  97,  98,  99.  100,  155.  (See  Legal  Tender.) 

Tenure  of  office.  Of  military  officers  in  time  of  peace,  n.  184,  p.  179. 
Persons  holding  civil  offices,  how  removed,  Id.  With  the 
exception  of  secretaries,  n.  184,  p.  179,  § 1.  Power  of  the 
President  to  suspend  during  the  recess  of  the  Senate,  Id.  § 2. 
President  to  designate  some  person  to  perform  the  duties, 
Id.  If  the  Senate  refuse  to  concur.  Id.  The  President  may 
revoke  the  suspension,  Id.  p.  180.  The  President’s  power  to 
fill  vacancies  during  the  recess.  Id.  § 3.  And  if  not  con- 
firmed, office  to  remain  in  abeyance,  Id.  Tenure  not  to  be 
extended  beyond  the  term  limited  by  law,  n.  184,  p.  180, 
§ 4.  Penalty  for  accepting  office  contrary  to  law,  Id.,  § 5. 
Penalty  for  removal  or  employment  contrary  to  law,  Id. 
§ 6.  Fine  and  imprisonment,  Id.  Duty  of  the  secretary 
of  the  Senate  to  furnish  lists  of  the  rejected,  to  whom,  Id. 
§ 7.  Duty  of  the  President  to  communicate  information 
of  appointment,  n.  184,  p.  181,  § 8.  No  payment  to  persons 


19  1 

19  4 

5 

1 9 B 

1 2 3 

12  3 

18  1 


1 10  1 


pp. 

37,204 

40,247 


30,104 

31.149 
40,  246 

31.150 
23,67 

23,  67 
28,  94 


81, 153 


/ 


598 


INDEX. 


Art. 


appointed  contrary  to  the  act,  Id.  9.  All  vouchers  and 
payments  forbidden  under  penalty.  Id. 

Teem  of  election  of  representatives  in  Congress — to  he  chosen 

every  two  years 1 

Term  of  ten  years.  Tbe  census  shall  he  taken  within  every  term 

of  ten  years  subsequent  to  the  first 1 

Term  of  citizenship  as  qualification  for  a representative  in  Con- 
gress— seven  years 1 

Term  of  years.  Representative  numbers  include  those  persons 

bound  to  service  for  a term  of  years 1 

Term  of  office  of  senators  in  Congress — to  be  chosen  for  six  years.  1 
Term  of  citizenship  as  qualification  for  a senator  in  Congress — nine 

years 1 

Term  of  office.  The  President  shall  hold  his  office  during  the 
term  of  four  years,  and  the  Vice-President  chosen  for  the 
same  term 2 


Territories.  The  organized  and  inchoate  States,  n.  231,  pp.  239, 

240.  Not  States  within  the  meaning  of  the  judicial  power 
and  the  judiciary  act,  n.  206,  p.  20L  Offenses  in  the  or- 
ganized Territories,  tried  therein,  n.  214.  Acts  of  authen- 
tication extended  to,  n.  219,  p.  222,  § 2.  The  act  is  con- 
stitutional, Id.  The  Territories  are  States  as  to  fugitive 
slaves,  n.  227,  p.  233.  States  carved  out  of  Territories, 
n.  230.  They  are  States  within  the  guaranty  of  a repub- 
lican form  of  government,  n.  233,  p.  242.  Their  judges  are 
not  constitutional,  but  removable,  n.  197.  The  same  duties 
must  be  paid  in  all  the  States  and  Territories,  n.  81.  Ab- 
surdities in  relation  to,  notes  231,  285. 

Territory.  Congress  shall  exercise  exclusive  legislation  over  all 
places  (or  territory)  acquired  for  public  purposes  by  ces- 
sion of  particular  States 1 

(See  District  of  Columbia , n.  137.) 

Territory.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States. . . 4 

Territory  critically  defined,  n.  231,  p.  238.  Applies  only 
to  property  held  at  the  time,  Id.  Not  to  future  ac- 
quisitions, Id.  p.  230.  Congress  may  punish  for  offenses 
within  the,  notes  91,  230.  The  Indian  country  remains  a 
part  of  the,  n.  231,  p.  230.  The  doctrine  of  power  as  to, 

Id.  p.  240.  Powers  denied,  Id.  The  Confederate 
States  Constitution  as  to,  n.  231,  pp.  240,  241,  § 2,  3.  “ And 
other  property  defined”  and  discussed,  n.  232.  Of  Louisi- 
ana, Florida,  California,  New  Mexico,  as  to  their  inhabitants, 
n,  220,  pp.  233,  234,  § 3-7.  The  States  possess  the  power 
to  forbid  tbe  introduction  of  certain  persons  into  their 
territory,  n.  221,  p.  225.  Opposite  views  as  to  the  power 
over  slavery  in  the  “common  territory,”  n.  222,  p.  229. 

The  power  to  levy  taxes  is  co-extensive  with  the  territory 
of  the  United  States,  n.  73. 

Test.  No  religious  test  shall  ever  be  required  as  a qualification  to 

any  office  or  public  trust  under  the  United  States 6 

In  what  sense  this  was  used.  n.  242,  p.  251. 

Test  oath  required  by  the  act  of  1862,  n.  242,  p.  251.  Held  un- 
constitutional as  to  certain  attorneys,  notes  142, 143,  242. 

Testimony.  No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 

confession  in  open  court 3 

(See  Treason,  n.  213.) 

Things.  No  warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describing 
tbe  place  to  be  searched,  and  the  persons  or  things  to  be 


seized.  Amendments 4 

Thompson,  Smith.  Associate  Justice  of  the  Supreme  Court, 
n.  197,  p.  103. 

Tiiiike-fiktiis  of  all  other  persons  (slaves)  included  in  representa- 
tive numbers 1 

That  is,  two-fifths  of  the  slaves  were  excluded,  n.  24,  p.  68. 


sec.  cl. 


2 1 
2 3 

2 2 

2 3 

3 1 

3 3 

1 1 


8 17 

8 2 


3 


8 1 


2 8 


pp. 


22, 56 

23, 67 

23, 66 

23,  67 
24,74 

24,77 

23,162 


30,167 
39, 238 


40,250 


88,211 


44,257 


23, 67 


INDEX.  If 


599 


Art. 

Three-fourths.  Amendments  to  the  Constitution  must  be  ratified 
by  the  legislatures  or  conventions  of  three-fourths  of  the 


States 5 

Differences  of  opinion  ,as  to  what  are  three-fourths 
necessary  for  the  fourteenth  amendment,  n.  275. 

Time  of  choosing  electors  may  be  determined  by  Congress 2 

Title  of  nobility.  No  title  of  nobility  shall  be  granted  by  the 
United  States;  and  no  person  holding  any" office  of  profit 


or  trust  under  them,  shall,  without  the  consent  of  the 
Congress,  accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king,  prince,  or 


foreign  State 1 

Title  of  nobility.  No  State  shall  grant  any  title  of  nobility 1 

Title  of  nobility  defined,  n.  151. 


Todd,  Thomas.  Associate  Justice  of  the  Supreme  Court,  n.  197, 
p.  193. 

Tompkins,  Daniel  D.  Vice-President,  n.  37,  p.  78. 

Tonnage.  No  State  shall,  without  the  consent  of  Congress,  lay 

any  duty  of  tonnage 1 

Tonnage  defined,  n.  163. 

Toombs,  Robert,  of  Ga.  Expelled  from  the  Senate,  n.  50. 

Tracy,  Uriah.  President  of  the  Senate,  pro  tempore , n.  38, 
p.  78. 

Training  the  militia  The  authority  of  training  the  militia  re- 
served to  the  States 1 

This  power  explained,  notes  134, 135. 

Tranquillity.  Constitution  established  to  secure  domestic  tran- 
quillity. Preamble 

This  object  defined,  n.  9. 

Treason.  For  treason  a senator  or  representative  may  be  ar- 


rested   1 

Treason.  All  civil  officers  shall  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  treason,  &c 2 

Treason  against  the  United  States  shall  consist  only  in  levying 


war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the 

same  overt  act,  or  on  confession  in  open  court . . 3 

Treason  at  common  law  defined,  n.  215.  Only  defined, 

Id.  The  levying  war  may  be  under  the  authority  of  State 
governments  or  confederacy  of  States,  Id.  p 211. 

Treason.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  -work  cor- 
ruption of  blood  or  forfeiture,  except  during  the  life  of 


the  person  attainted 3 

Punishment  defined  and  acts  of  Congress  quoted,  n.  217. 
son.  A person  charged  with  treason,  and  fleeing  from  one 
• State  to  another,  to  be  delivered  up,  on  demand,  to  the 
State  having  jurisdiction 4 


Treasury.  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 

and  paid  out  of  the  Treasury  of  the  United  States ...  1 

Treasury.  No  money  shall  be  drawn  from  the  Treasury,  but  in 
consequence  of  appropriations  made  by  law ; and  a regu- 
lar statement  and  account  of  the  receipts  and  expendi- 
tures of  all  public  money  shall  be  published  from  time  to 


time i 1 

Treasury  of  the  United  States.  The  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or  exports, 
shall  be  for  the  use  of  the  Treasury  of  the  United  States..  1 
(See  Secretary  of  the  Treasury , n.  184.) 

Treaties.  The  President  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  senators  present  concur 2 

Treaty  defined,  n.  178,  p.  175,  and  note  240.  They  are 
contracts,  Id.  Their  interpretation  is  often  political, 
notes  178,  199.  The  advice  of  the  Senate,  how  obtained, 
n.  178. 


sec.  cl. 


1 3 


9 8 

10  1 


10  3 


8 16 


6 1 
4 1 


3 1 


3 2 


2 2 
6 1 


9 7 

10  2 


2 2 


pp. 

40,  246 
34, 167 

31.152 

31. 153 

32,161 

29, 135 

22,53 

26, 88 
36,185 

38, 211 

38,213 

38,229 

26,88 

31, 151 
32,161 

35,174  * 


43 


600 


INDEX 


• # 


Art.  sec. 

Treaties.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  the  treaties  made,  or  which  shall  be 

made,  under  their  authority 3 2 

This  subject  critically  considered,  n.  199,  p.  195. 

Treaties.  All  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law 

of  the  land 6 

Treaties  defined,  notes  178,  240.  How  far  it  binds  the 
nation  and  is  repealable,  n.  240. 

Treaty.  No  State  shall  enter  ip  to  any  treaty. . 1 10 

Because  it  is  a national  power,  n.  152.  Treaty  defined, 
notes  178, 199, 240. 

Trial.  A party  convicted  on  an  impeachment  shall  nevertheless 
be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law 1 3 

Trial  by  jury.  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury,  and  such  trial  shall  be  held 
in  the  State  where  the  said  crimes  shall  have  been  com- 
mitted ; but  when  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may 

by  law  direct ...  3 2 

(See  Crimes — Jury , notes  213,  215.)  Trial  defined,  n,  213, 
p.  209. 

Trial.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wiierein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  as- 
certained by  law.  Amendments 6 

Trial  by  jury.  In  suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved  ; and  no  fact  tried  by  a jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 

States.  Amendments 7 

(See  Common  Law,  n.  263.) 

Tribunals.  Congress  shall  have  power  to  constitute  tribunals  in- 
ferior to  the  Supreme  Court 1 8 

The  tribunals  which  have  been  established  under  this 
section,  n.  109. 

Tried.  When  the.  President  of  the  United  States  is  tried  on  an 

impeachment,  the  chief-justice  shall  preside 1 3 

Tried.  “ Twice  in  jeopardy,”  means  that  a party  shall  not  be 
tried  a second  time,  n.  255. 

Trimble,  Robert.  Associate  Justice  of  the  Supreme  Court,  .n. 

197,  p.  193. 

Troops.  No  State  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  or  keep  troops  or  ships  of  war,  in  time 

of  peace : *. . . 1 10 

Troops  defined,  n.  164. 

Trumbull,  Jonathan.  Speaker  of  the  House  of  Representatives, 
n.  26. 

Trust.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  removal  from  office,  and  disqualification  to 
hold  an  enjoy  any  office  of  honor,  trust,  or  profit  under 
the  United  States 1 3 

Trust.  No  person  holding  an  office  of  trust  or  profit  under  the 

United  States  shall  be  appointed  an  elector  2 1 

Trust.  No  religious  test  shall  ever  be  required  as  a qualifi- 
cation to  any  office  or  public  trust  under  the  United 
States 6 

Try  all  impeachments.  The  Senate  shall  have  the  sole  power  to 

try  all  impeachments 1 8 

(See  note  40.) 

Twenty  dollars.  In  suits  at  common  law,  when  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  richt  of  trial  by 

jury  shall  be  preserved.  Amendments  7 

(See  Common  Law , n.  263.) 

Two-thirds.  No  person  shall  be  convicted  by  the  Senate  on  an 


cl. 


1 


2 

1 


7 


3 


9 


6 


8 


7 
2 

8 
6 


pp. 

37,  If  4 

40,247 
31, 153 

25,82 
37.  209 

44  263 

45  266 
29  124 

2:  8" 

32,  If 

25,  Si 
82, 164 

40, 25V 

25,81 

45, 26C 


INDEX, 


601 


Art. 

impeachment  without  the  concurrence  of  two-thirds  of 

the  members  present 1 

Two-thirds.  Each  house  of  Congress  may,  by  the  concurrence  of 

two-thirds,  expel  a member 1 

Two-thirds.  A bill  returned  with  objections  by  the  President,  may 
be  passed  by  two-thirds  of  both  houses  of  Congress,  and 

become  a law . . 1 

Two-thirds.  Any  order,  resolution,  or  vote,  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a question  of  adjournment),  and  re- 
turned with  objections  by  the  President,  may  be  re- 
passed by  two-thirds  of  both  houses  of  Congress 1 

Two-thirds.  The  President  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  senators  present  concur 2 

Two-thirds.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 

Constitution 5 

Two-thirds.  On  the  application  of  the  legislatures  of  two-thirds 
of  the  several  States,  Congress  shall  call  a convention  for 

proposing  amendments  to  the  Constitution 5 

Two-thirds.  A quorum  (of  the  House  of  Representatives  for  the 
election  of  President)  shall  consist  of  a member  or  mem- 
bers from-t wo -thirds  of  the  States,  and  a majority  of  all 
the  States  shall  be  necessary  to  a choice.  Amend- 


ments  12 

Two-thirds.  A quorum  (for  the  election  of  Vice-President  by  the 
Senate)  shall  consist  of  two-thirds  of  the  whole  number  of 
senators,  and  a majority  of  the  whole  number  shall  be 

necessary  to  a choice.  Amendments 12 

Tyler,  John.  Vice-President,  n.  37.  And  President,  n.  166. 


sec.  cl. 

3 6 

5 2 

7 2 

7 8 

2 2 


1 

1 


Uniform.  All  duties,  imports,  and  excises,  shall  be  uniform 

throughout  the  United  States 18  1 

Taxes  must  be  uniform,  under  this  clause  ; but  need  not 
be  apportioned  according  to  the  census,  n.  81,  p.  102. 

Uniform  defined,  Id. 

Uniform.  Congress  shall  have  power  to  establish  an  uniform  rule 
of  naturalization,  and  uniform  laws  on  the  subject  of 

bankruptcies,  throughout  the  United  States 1 8 4 

To  be  uniform  the  power  must  be  exclusive,  n.  93. 

Union.  The  doctrines  of  nullification  in  regard  to,  Pref.  p.  vii.  It 
has  the  inherent  powers  to  make  it  perpetual,  Pref.  p.  viii. 

Secession  tested  its  strength,  Id.  xi.  Effect  of  secession  upon 
governments  firm  to  the  Union,  Pref.  p.  xii.  The  principle 
upon  which  West  Virginia  was  admitted  into  the  Union, 

Id.  and  note  235.  The  security  in  the  hands  of  the  law- 
making power,  Pref.  p.  xiii.,  notes  46,  233,  242,  276,  286. 

Its  firm  basis,  n.  286.  Articles  of  Confederation  and  per- 
petual union,  p.  9. 

Union.  The  Constitution  established  in  order  to  form  a more 

perfect  union.  Preamble 

That  is  to  m^ke  it  stronger,  n.  7. 

Union.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 


this  Union,  according  to  their  respective  numbers.  &c 1 2 3 

Union.  The  President  shall,  from  time  to  time,  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  v 

necessary  and  expedient 2 3 1 

Union.  New  States  may  be  admitted  by  the  Congress  into  this 

Union 4 3 1 

See  a list,  and  the  dates  of  the  admission  of  new  States, 
n.  230. 

Union.  The  United  States  shall  guarantee  to  every  State  in  the 

Union  a republican  form  of  government 4 4 1 

This  guaranty  extends  to  Territories  as  well  as  States, 

n.  233. 


pp. 

25,81 

26,86 

27, 91 

28,93 
35, 174 
40, 246 
40,246 

47,166 
47, 166 


28,94 


28,112 


22,53 

23, 67 

36, 183 
39,244  , 

39,  242 


602 


INDEX, 


Art.  sec.  cl. 

United  States.  Declaration  of  Independence,  sent  to  each  of  the, 
p.  8.  Formed  Articles  of  Confederation,  pp.  8,  9.  Style  of  the 
k‘  United  States  of  America,”  Art.  I.  p.  9.  Inhibitions 
upon  the  States  without  the  consent  of,  Arts.  VI.  pp.  11, 

12,  18.  Expenses  of  war  to  be  borne  by.  Art.  VIIL  p.  13. 

Power  and  jurisdiction  under  the  Confederation,  Ai  t.  IX. 
pp.  14-19.  Committee  of  the  States  might  exercise  the 
powers  of,  during  recess,  Art.  X.  p.  19.  Canada  might  be 
admitted  into  the,  Art.  X.  p.  19.  To  be  liable  for  bills  of 
credit  issued  by  Congress,  Art.  XII.  p.  19.  The  States  to 
abide  by  the  determination  of,  Art.  XIII.  p.  20. 

United  States,  or  government  of  the  United  States.  We  the 
people  of  the  United  States,  &c.,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

Preamble 

(See  America — Government — People , notes  1-13.) 

United  States.  All  legislative  powers  herein  granted  shall  be 


vested  in  a Congress  of  the  United  States  - 1 1 1 

(See  Legislative  Power , notes  14, 15.) 

United  States.  No  person  shall  be  a representative  who  shall 
not  have  attained  the  age  of  twenty-five  years,  and  been 

seven  years  a citizen  of  the  United  States ...  1 2 2 

(See  Qualifications , notes  19,  20,  46.) 

United  States.  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  senators  from  each  State 13  1 

(See  Senators , n.  28.) 

United  States.  No  person  shall  be  a senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a 

citizen  of  the  United  States 1 3 3 

(See  Qualifications , notes  35,  46.) 

United  States.  Judgment  in  cases  of  impeachment  shall  not  ex- 
tend further  than  to  removal  from  office,  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 

under  the  United  States  .\..  1 3 7 

Doubtful  if  it  can  be  less.  (See  Impeachment , n.  40.) 

United  States.  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  treasury  of  the  United  States 1 6 1 


(See  Compensation.) 

United  States.  No  senator  or  representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a member  of 

either  house  during  his  continuance  in  office 1 6 2 

(See  Offices,  n.  63.) 

United  States.  Congress  shall  have  power  to  provide  for  the 

common  defense  and  general  welfare  o’f  the  United  States.  18  1 

(See  Common  Defense  and  General  Welfare,  notes 
9,  79,  80.) 

United  States.  All  duties,  imposts,  and  excises  shall  be  uniform 


throughout  the  United  States 1 S 1 

(See  Duties,  notes  81,  144.) 

United  States.  Congress  shall  have  power  to  establish  an  uniform 
rule  of  naturalization,  and  uniform  laws  on  the  subject  of 

bankruptcies  throughout  the  United  States 1 8 4 

(See  Naturalisation — Bankruptcies,  notes  93-96.)  As 
to  the  effect  of  naturalization,  see  n.  274. 

United  States.  Congress  shall  have  power  to  provide  for  the 
punishment  of  counterfeiting  the  securities  and  current 

coin  of  the  United  States. 1 8 6 

(See  Counterfeiting,  n.  103.) 

United  States.  Establishment  of  the  seat  of  government  of  the 

United  States 1 8 17 

(See  District  of  Columbia — Forts — Arsenals,  notes  136, 

137.) 


United  States.  Congress  shall  have  power  to  make  all  laws  which 


pp. 


22,53 

22,58 


23, 66 


24,  74 


24,  74 


25,82 

26,88 


27,90 
28, 94 

28,94 

29,112 

29,  US 
80, 136 


INDEX, 


603 


shall  he  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or 

in  any  department  or  office  thereof 

(See  Linos — Powers,  notes  138,  268,  269,  274. 

United  States.  No  title  of  nobility  shall  be  granted  by  the  United 

States 

(See  Nobility , notes  150, 151.) 

United  States  Treasury.  (See  Treasury .) 

United  States.  No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws,  and  the  net  produce  of  all  duties  and  imposts 
laid  by  any  State  on  imports  or  exports  shall  be  for  the 
use  of  the  Treasury  of  the  United  States,  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Con- 
gress  

(See  States — Duties — Imposts , notes  162-165.) 

For  these  inhibitions  see  the  Articles  of  Confederation, 
Art.  VI.  pp.  11-13. 

United  States.  The  executive  power  shall  be  vested  in  a Presi- 
dent of  the  United  States  of  America 

(See  Executive  Power,  n.  165.)  List  of  Presidents,  n.166. 

United  States.  No  senator  or  representative,  or  person  holding 
an  office  of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector  of  President  and  Vice-President 

United  States.  The  time  of  choosing  electors  shall  be  the  same 

throughout  the  United  States 

Time  fixed,  n.  168c. 

United  States.  No  person  except  a natural  born  citizen,  or  citizen 
of  theUnited  States  at  the  time  of  the  adoption  of  the 
Constituton,  nor  unless  he  shall  have  attained  the  age  of 
thirty-five  years,  and  been  fourteen  years  a resident  of  the 

United  States,  shall  be  President  of  the  United  States 

(See  Qualification,  n.  170.) 

United  States.  The  President  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of 
the  several  States,  when  called  into  actual  service  of  the 

United  States 

(See  Commander-in- Chief,  n.  175.) 

United  States.  The  President  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except 

in  cases  of  impeachment 

(See  Reprieves— Pardons,  n.  177.) 

United  States.  The  President  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint  officers  of 
the  United  States,  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by 

law 

(See  Appointments , notes  179-184:  Tenure  of  Office, 
n.  184.) 

United  States.  The  President  shall  commission  all  officers  of  the 

United  States 

(See  Commission,  n.  190.) 

United  States.  The  President,  Vice-President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of*  treason,  bribery,  or 

other  high  crimes  and  misdemeanors 

(See  Impeachment,  notes  192-194.) 

United  States.  The  judical  power  of  the  United  States,  shall  be 
vested  in  one'  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish   

(See  Judicial  Power,  notes  195-198.) 

United  States.  The  judicial  power  shall  extend  to  all  contro- 
versies to  which  the  United  States  shall  be  a party 

United  States.  The  judicial  power  shall  .extend  to  all  cases  in 
law  and  equity,  arising  under  this  Constitution,  the  laws 


Art. 


1 

1 


1 


2 


2 

2 


2 


2 


2 


2 


2 


2 


3 

3 


sec.  cl. 


8 18 
9 8 

10  2 

1 1 

1 2 
1 3 

1 4 

2 1 
2 1 

2 2 

3 

4 
1 

2 1 


pp. 

30, 138 
31, 152 


32. 161 

32.162 

32,164 
34, 167 

34, 169 

35, 171 
35,171 

35, 174 
36,183 

36, 185 

36,189 
37, 194 


604 


INDEX. 


Art. 


of  the  United  States,  and  treaties  made,  or  which  shall  he 

made,  under  their  authority 3 

See  ( Judicial  Power , notes  199-209.) 

United  States.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort 3 


(See  Treason , notes  211-214.) 

United  States.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the*  United  States; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States,  or  of  any 

particular  State 4 

(See  Territories , notes  231,  232.) 

United  States.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion ; and  on  application 
of  the  legislature,  or  of  the  executive  (when  the  legisla- 
ture cannot  be  convened),  against  domestic  violence 4 

(See  Guaranty — “ Republican  form  of  Government ,” 
n.  233.  Invasion , n.  234.  Domestic,  Violence , n.  235.) 

United  States.  All  debts  contracted,  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution  as 

under  the  Confederation 6 

(See  Debts , n.  23T.) 

United  States.  This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land.  6 
See  the  article  defined  and  discussed,  notes  238, 241. 

United  States.  The  senators  and  representatives  before  men- 
tioned, and  the  members  of  the  several  State  legislatures, 
and  all  executive  and  judicial  officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath  or 
affirmation,  to  support  this  Constitution  ; but  no  religious 
test  shall  ever  be  required  as  a qualification  to  any  office 

or  public  trust  under  the  United  States 6 

(See  Oath,  n.  242.) 

United  States  Court.  In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved;  and  no  fact  tried  by  a jury 
shall  be  otherwise  re-examined  iu  any  court  of  the  United 
States  than  according  to  the  rules  of  the  common  law. 

Amendments 7 

See  this  article  discussed,  notes  263-265,  and  n.  205a. 

United  States.  The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States,  respectively,  or  to  the  people. 

Amendments 10 

(See  Power's,  notes  138,  209,  274.) 

United  States.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 


foreign  State.  Amendments 11 

(See  Law  and  Equity,  notes  270,  272,  and  n.  205 a.) 

United  States.  The  list  of  votes  for  President  and  Vice  Presi- 
dent shall  be  transmitted  to  the  seat  of  the  government 
of  the  United  States.  Amendments 12 


United  States.  Neither  slavery  nor  involuntary  servitude,  except 
as  a punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States 
or  any  place  subject  to  their  jurisdiction.  Amendments. . 13 

(See  Citizens — Slavery,  n.  174.) 

United' States.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside. 


sec. 

2 1 

3 1 


3 2 


4 


1 


2 


3 


1 


[.  pp. 

37, 194 
38,211 

89,238 

89, 242 

40,247 

40,247 

41,  250 

45, 266 
45,  269 

46,269 
46, 164 
48,271 


INDEX, 


605 


Art.  sec. 

No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ; nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws.  Amendments 14  1 

(See  Citizens — Naturalization — Slavery , n.  274.) 

United  States.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to 
vote  at  any  election  for  the  choice  of  electors  for  Presi- 
dent and  Vice-President  of  the  United  States,  representa- 
tives in  Congress,  the  executive  and  judicial  officers  of 
a State,  or  the  members  of  the  legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty -one  years  of  age  in  such 

State.  Amendments 14  2 

See  notes  276-277. 

United  States.  No  person  shall  be  a senator  or  representative 
in  Congress,  or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a member  of  Congress,  or  as  any  officer  of  the 
United  States,  or  as  a member  of  any  State  legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may,  by 
a vote  of  two-thirds  of  each  house,  remove  such  disability. 

Amendments 14  3 

' Sec  this  section  discussed,  n.  281. 

United  States.  The  validity  of  public  debt  of  the  United  States, 
authorized  by  law^including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing' insur- 
rection or  rebellion  shall  not  be  questioned.  But  neither  the 
United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave  ; but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void.  Amendments..  14  4 

See  this  discussed,  n.  282. 

Unusual  punishments.  Excessive  bail  shall  not  be  required  nor 
excessive  lines  imposed,  nor  cruel  and  unusual  punish- 
ments inflicted.  Amendments 8 

(See  Bail — Fines , notes  266,  267.) 


cL  pp. 


48,279 


48,279 


49,279 


49, 280 
45, 26 


Vacancies.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  thereof  shall  issue  writs  of  elec- 
tion to  fill  them 1 2 4 23, 72 

Action  of  the  executive;  how  vacancies  are  created; 
acceptance  of  an  incompatible  office  on  absolute  determi- 
nation of  the  first,  n.  25. 

Vacancies.  If  vacancies  happen,  by  resignation  or  otherwise,  in 
the  seats  of  senators,  during  the  recess  of  the  legislature  of 
any  State,  the  executive  thereof  may  make  temporary  ap- 
pointments, until  the  next  meeting  of  the  legislatures, 

which  shall  then  fill  such  vacancies 1 3 2 24,76 

In  what  manner  vacated,  n.  32.  The  executive  cannot 
fill  a prospective  vacancy,  n.  33. 

Vacancies.  The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate,  by 


606 


INDEX, 


Art.  sec. 

granting  commissions  which  shall  expire  at  the  end  of 

their  next  session 2 2 

This  clause  discussed;  various  opinions;  how  the 
vacancy  inav  occur  ; “that  may  happen  ” defined;  limi- 
tation of  the  power ; may  act  on  the  neglect  of  the 
Senate,  n.  185.  Length  of  the  commission ; the  concur- 
rence of  the  Senate  at  the  expiration  of  former  commis- 
sion makes  a new  appointment,  n.  1S6. 

Validity  of  contracts  or  engagements.  All  debts  contracted,  and 
engagements  entered  into,  before  the  adoption  of  this 
Constitution,  shall  be  as  valid  against  the  United  States 

under  this  Constitution,  as  under  the  Confederation 6 

A principle  of  moral  obligation,  n.  237. 

Value.  Congress  shall  have  power  to  coin  money,  regulate  the 

value  thereof,  and  of  foreign  coin 1 8 

“ To  coin  11  defined  ; a treasury  note  only  a promise  to 
pay  money;  “currency”  is  not  “money;”  a contract 
satisfied  by  payment  of  legal  tender,  n.  97.  “Money” 
defined ; coin  has  no  pledge  of  redemption,  n.  98.  Regu- 
late the  value  defined;  vested  exclusively  in  Congress, 
n.  99.  Restrictions  as  to  legal  tender ; intrinsic  value  of  no 
consequence,  n.  100. 

Value  in  controversy.  In  suits  at  common  law,  when  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of 

trial  by  jury  shall  be  preserved,  &c.  Amendments 7 

“ Suits  at  common  law  ” defined ; limitation  of  the 
phrase ; “ common  law  ” defined ; trial  by  jury,  for 

whose  benefit,  n.  263. 

Van  Buren,  Martin.  President  of  the  United  States,  n.  166. 

Van  Dyke,  Nicholas,  of  Delaware.  Signed  Articles  of  Confed- 
eration, p.  21. 

Varnum,  Joseph  B.  Speaker  of  the  House  of  Representatives, 
n.  26.  And  President  of  the  Senate,  pro  tempore,  n.  38, 
p.  79. 

Vermont.  Qualifications  for  suffrage  in,  n.  17.  Number  of  repre- 
sentatives, n.  24.  Population  in  each  decade,  n.  24,  pp. 

69,  70.  Assigned  to  second  judicial  circuit,  n.  197.  Ad- 
mitted into  the  Union,  n.  250.  Ratified  the  thirteenth 
amendment,  n.  274;  the  fourteenth,  n.  275. 

Vessbls.  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over  those 
of  another ; nor  shall  vessels  bound  to  or  from  one  State 

be  obliged  to  enter,  clear,  or  pay  duties  in  another 1 9 

“Preference”  defined,  n.  147.  The  coasting  trade, 
n.  148. 

Vest.  Congress  may  by  law  vest  the  appointment  of  such 
inferior  offices  as  they  think  proper  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments  2 2 

Clerks  of  court  and  commissioners  of  bail  are  such  offi- 
cers, n.  183. 

Vested  in  the  government.  Congress  shall  have  power  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the 

United  States,  or  in  any  department  or  office  thereof 1 8 

“ Necessary”  defined ; not  synonymous  with  “ absolutely 
necessary  ;”  Congress  must  judge  of  the  means  to  effect 
the  end;  “power”  defined,  full  import  of  the  clause; 

“proper”  defined;  incidental  powers,  n.  138,  p.  139. 

Vested  in  a President.  The  executive  power  shall  be  vested  in  a 

President  of  the  United  States  of  America 2 1 

Object  of  an  executive  department ; definition  and 
limitation  of  executive  power,  n.  165.  List  of  Presidents, 
n.  166 

(See  President.') 

Vested  in  one  Supreme  Court.  The  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court,  and  in  such 


cL 

3 


1 

5 


6 


18 


1 


pp. 

36, 182 


40, 247 
29,114 


45,266 


81,151 


85,174 


80, 138 


82,162 


INDEX, 


607 


Art. 

inferior  courts  as  the  Congress  may  from  time  to  time 

ordain  and  establish 3 

“Judicial  power”  defined  and  discussed;  “shall  be 
vested”  defined;  divisions  of  power;  Supreme  Court 
defined,  n.  195.  Inferior  courts,  n.  196.  List  of  Justices 
of  the  Supreme  Court,  n.  197,  pp.  191-194. 

(See  Supreme  Court.') 

Vested  in  a Congress.  All  legislative  powers  herein  granted  shall 
be  vested  in  a Congress  of  the  United  States,  which  shall 

consist  of  a Senate  and  a House  of  Representatives 1 

“Legislative  power”  defined,  n.  14.  Congress  defined ; 
the  division  of  Congress  discussed,  n.  15. 

Vested  rights.  (See  Contract , notes  152-160.  See  Senate , and 
House  of  Representatives.) 

Veto  power  of  the  President.  (See  President .) 1 

“Veto  power”  defined;  objects  of;  infrequency  of  use 
in  former  times;  President  Jackson’s  vetoes ; President 
Polk’s  vetoes;  President  Johnson’s  vetoes ; “Freedman’s 
Bureau  Bill  ” successfully  vetoed ; “ Civil  Rights  Bill  ” and 
Reconstruction  acts  vetoed,  n.  67,  p.  92.  President  John- 
son’s opinion  as  to  unconstitutionality  of  the  various 
vetoed  acts  ; “ two-thirds  defined  ; decision  of  the  Senate 
on  a “ quorum,”  n.  68.  The  President  must  receive  the 
bill  ten  entire  days  before  adjournment,  or  else  it  does  not 
become  law,  n.  69. 

Vice-President  shall  have  no  vote  in  the  Senate  unless  they  be 
equally  divided,  or  when  he  shall  exercise  the  office  of 


President  of  the  United  States 1 

List  of  Vice-Presidents,  n.  37. 

Vice-President.  The  Senate  shall  choose  a President  pro  tempore 

in  the  absence  of  the . . 1 

List  of  presiding  officers,  n.  38 

Vice-President.  The  President  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  Vice-Presi- 
dent, chosen  for  the  same  term,  be  elected  as  follows. 
Amendments 12 


Vice-President  of  the  United  States.  Qualification  required  as 

Vice-President  same  as  for  President  of  the  United  States.  12 
Vice-President.  In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  discharge 
the  powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  Vice-President  ; and  the  Congress  may  by 
law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President,  de- 
claring what  officer  shall  then  act  as  President,  and  such 
officer  shall  act  accordingly,  until  the  disability  be  re- 
moved, or  a President  shall  be  elected 2 

List  of  Vice-Presidents,  who  have  become  Presidents, 
n.  172. 

Vice-President  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other  high  crimes 


and  misdemeanors 2 

(See  Impeachment , notes  39,  40, 191-194.) 

Vice-President  of  the  United  States.  Election  of  Vice-President 

of  the  United  States.  Amendments . . 12 

(See  Election .) 

Vice-President.  The  lists  of  votes  of  electors  of  President  and 
Vice-President  shall  be  directed  to  the  president  of  the 

Senate.  Amendments  12 

Vice-President.  The  president  of  the  Senate  shall,  in  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
certificates  of  the  electors  of  President  and  Vice-President 

of  the  United  States.  Amendments 12 

Vice-President.  If  the  House  of  Representatives  shall  not  choose 
a President  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  4th  day  of  March  next  following, 
then  the  Vice-President  shall  act  as  President,  as  in  the 


sec.  cl 


1 1 


1 1 


7 2 


3 4 

3 5 


1 

3 


1 5 


4 


1 

1 


pp. 

36, 189 

22,58 

27,91 

24.77 

24.78 

46,164 
47, 166 

34, 169 

36, 185 
46, 164 

46, 164 

46,164 


608 


INDEX, 


case  of  the  death  or  other  constitutional  disability  of  the 

President.  Amendments 

Vice-President.  The  person  having  the  greatest  number  of  votes 
as  Vice-President  shall  be  the  Vice-President,  if  such 
number  be  a majority  of  the  whole  number  of  electors 
appointed;  and  if  no  person  have  a majority,  then,  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President : a quorum  for  the  purpose  shall 
consist  of  two-thirds  of  the  whole  number  of  senators,  and 
a majority  of  the  whole  number  shall  be  necessary  to  a 

choice.  Amendments 

Vice-President.  But  no  person,  constitutionally  ineligible  to  the 
office  of  President,  shall  be  eligible  to  that  of  Vice-Presi- 
dent of  the  United  States.  Amendments 

Violated.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  etfecfcs,  against  unreasonable  searches 

and  seizures,  shall  not  be  violated.  Amendments 

(See  Houses — Searches , n.  251,  252.) 

Virginia.  Signed  the  Declaration  of  Independence,  p.  7.  One  of 
the  Confederation,  p.  9.  Signed  Articles  of  Confederation, 
p.  21.  Signed  Constitution  of  the  United  States,  pp,  41,  42, 
252.  Qualifications  for  suffrage,  n.  17. 

Virginia.  Entitled  to  ten  representatives  in  the  first  Congress  .. 

Eleven  representatives  by  the  census  of  1860  (now 
eight),  n.  24.  Population  of,  in  several  decades,  n.  24,  pp. 
69,  70.  Assigned  to  fourth  judicial  circuit,  n.  197,  p.  193. 
History  of,  during  the  rebellion,  n.  235.  West  Virginia 
carved  out  of  Virginia,  notes  24.  230,  235,  276.  Ratified 
the  thirteenth  amendment,  n.  274.  Rejected  the  four- 
teenth, n.  275.  One  of  the  rebel  States,  n.  277,  § 1.  Its 
government  declared  provisional,  n.  276,  p.  286,  § 1.  Num- 
ber of  the  registered  voters  in,  n.  278. 

Viva  voce  vote.  The  senators  shall  be  elected  by,  n.  30. 

Vote.  The  senators  shall  be  elected  by  a viva  voce  Vote,  n.  80. 

V ote.  Each  senator  shall  have  one 

Vote.  The  Vice-President  shall  have  no  vote  unless  the  Senate 

be  equally  divided 

Vote.  Every  vote  to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary  (except  on  a 
question  of  adjournment),  shall  be  presented  to  the  Presi- 
dent. (See  Resolution .) 

Vote.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United 
States,  representatives  in  Congress,  the  executive  and 
judicial  officers  of  a State,  or  the  members  of  the  legis- 
lature thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State,  being  twenty  one  years  of  age,  and  citizens  of 
the  United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  repre- 
sentation therein  shall  be  reduced  in  the  proportion  in 
which  the  number  of  such  male  citizens  shall  bear  the 
whole  number  of  male  citizens  twenty -one  years  of  age  in 

such  State.  Amendments  

Votes  in  the  two  houses  of  Congress,  on  passage  of  any  bill, 
order,  resolution,  or  vote,  returned  with  objections  by  the 

President,  shall  be  taken  by  yeas  and  nays 

The  bill  must  be  returned  in  ten  days;  “veto”  de- 
fined, n.  67.  Various  vetoes  cited,  n.  67. 

Votes  of  electors  of  President  and  Vice-President.  Place  and 
manner  of  giving  the  votes.  Lists  of  votes  to  be  made, 
signed,  certified,  transmitted  sealed  to  the  seat  of  govern- 
ment, directed  to  the  president  of  the  Senate,  to  be  opened 
and  counted  by  that  officer  in  the  presence  of  the  Senate 
and  House  of  Representatives.  The  number  necessary  to 
a choice.  The  day  on  which  electoral  votes  shall  be 

given  tnroughout  the  United  States.  Amendment^ 

Votes  taken  by  States.  In  choosing  the  President  by  the  House 
of  Representatives,  the  votes  shall  be  taken  by  States,  the 


Art.  sec.  ch 

12  1 

12  2 

12  8 

4 

12  8 

13  1 

13  4 

17  3 


14  2 

1 7 2A3 


12  1 


PPk 
46, 1G4 


47, 166 
47, 166 
44,267 

23,67 


24,74 
24, 77 

28,93 


48,  279 
27,91 


46,  lt>4 


INDEX 


609 


Art.  sec.  cl. 

representation  from  each  State  having  one  vote.  Amend- 
ments  12  1 

Votes  in  the  rebel  States  upon  their  new  constitutions,  n.  276, 
p.  283,  § 5.  How  to  be  expressed,  Id.  p.  284,  § 3.  List  of, 
to  be  kept,  n.  276,  p.  285,  § 4.  t 


Wade,  Benjamin.  President  of  the  Senate,  pro  tempore,  n.  38, 

p.  81. 

Walton,  George,  of  Georgia.  Signed  Declaration  of  Independ- 
ence, p.  7. 

WAlton,  John,  of  Georgia.  Signed  Articles  of  Confederation, 

p.  21. 

War.*  Congress  shall  have  power  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  concerning  captures 

on  land  and  water 1 

“ War  ” defined,  and  how  declared  with  Great  Britain, 
France,  Mexico,  &c.,  n.  117.  “Civil  war”  defined;  effect 
of  war  upon  citizens;  President’s  powers  during  war, 
n.  118.  “ Marque”  defined,  n.  120.  “Reprisal”  defined, 
n.  121.  Effects  of  war  upon  the  qualifications  of  members 
of  Congress,  n.  46. 

WAR.  Congress  shall  have  power  to  make  rules  (“rules  and 
articles  of  war”)  for  the  government  of  the  land  and  naval 


forces 1 

“ To  make  rules”  defined;  where  to  be  found,  n.  129. 

War.  No  State  shall,  without  the  consent  of  Congress,  engage  in 
war  unless  actually  invaded,  or  in  such  imminent  danger 

as  will  not  admit  of  delay 1 

War.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 

giving  them  aid  and  comfort 3 

“ Treason”  defined,  n.  215.  An  actual  levying  of  war 


necessary;  no  conviction  unless  present  at;  levying 
proved  ; “levying  war”  defined,  n.  215. 

War.  No  soldier  shall  be  quartered  in  any  house  in  time  of  war, 

but  in  a manner  to  be  prescribed  by  law.  Amendments...  3 
“Soldier”  defined;  “quartered”  defined,  n.  250.  Objeot 
of  the  provision.  “ Owner  ” defined,  n.  250. 

War.  No  person  shall  be  held  to  answer  for  a capital  or  other- 
wise infamous  crime,  unless  on  a presentment  or  indict- 
ment of  a grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service,  in 

time  of  war  or  public  danger.  Amendments. 5 

“Capital  or  infamous  crime ” defined ; “presentment,” 
“indictment,”  “grand  jury,”  defined;  military  jurisdic- 
tion, notes  253,  254. 

Warrants.  No  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things  to 

be  seized.  Amendments 4 

“ Warrant”  defined ; limitation  of,  n.252. 

Washington,  Bushrod.  Associate  Justice  of  the  Supreme  Court, 
n.  197,  p.  193. 

Washington,  George,  of  Virginia.  President  of  the  Convention; 
signed  the  Constitution,  pp.  41,  252.  President  of  the 
United  States,  n.  166.  Delivered  his  first  message  to  Con- 
gress orally,  n.  187. 

Wayne,  James  M.  Asdbciate  Justice  of  the  Supreme  Court,  n. 

197,  p.193.  * 

We  the  people  establish  this  Constitution.  Preamble 

“ We  the  people  ” defined ; synonymous  with  “ citizens ; ” 
not  a majority ; negroes  not  included  but  made  citizens 
by  Civil  Rights  Bill,  n.  6. 

Weights  and  measures.  Congress  shall  have  power  to  fix  the 

standard  of  weights  and  measures 1 

“Fix”  defined;  “standard”  defined,  n.  101.  Standard 
pound  cf  United  States,  how,  and  how  often,  regulated; 
standard  of  spirit  weight ; act  to  authorize  metric  system; 


8 11 


8 14 


10  3 

3 1 


8 6 


pp. 

46,  164 

29,  127 

29,  133 

32,  161 
38,  211 

44,  256 
44,  258 
44,  257 

23,  53 
29,  114 


610 


INDEX 


metric  measures  of  length,  surface  capacity,  weight, 
U.  103,  pp.  116-113. 

‘Welfare.  Constitution  established  to  promote  the  general  welfare. 

Preamble t 

This  phrase  defined ; date  of  insertion,  n.  11.  One  of 
tne  enumerated  powers  of  Congress  ; Story’s  definition  of 
the  phrase,  n.  80. 

Welfare.  Congress  shall  have  power  to  promote  the  general 

welfare 

Defined;  Judge  Story’s  explanation  ; the  jxywer  and  the 
‘ purpose,  discriminated;  limitation  of  the  power,  n.  80. 

Wentworth,  Jr.,  John,  of  New  Hampshire.  Signed  the  Articles 
of  Confederation,  p.  21. 

West  Virginia.  Qualifications  for  suffrage  in,  n.  IT.  Three  repre- 
sentatives, n.  24.  Assigned  to  fourth  judicial  circuit, 
n.  197.  Carved  out  of  Virginia,  n.  235.  Its  conduct  during 
the  war,  Id.  Ratified  the  thirteenth  amendment,  n.  274 ; 
the  fourteenth,  n.  275. 

Whipple,  William,  of  New  Hampshire.  Signed  Declaration  of 
Independence,  p.  7. 

Williams,  John,  of  North  Carolina.  Signed  the  Articles  of  Con- 
federation, p.  21. 

Williams,  William,  of  Connecticut.  Signed  Declaration  of  Inde- 
pendence, p.  7. 

Williamson,  Hu.,  of  North  Carolina.  Signed  the  Constitution, 
pp.  42,  252. 

Wilson,  James,  of  Pennsylvania.  Signed  the  Constitution,  pp. 
42,  252. 

Winthrop.  Robert  C.  Was  Speaker  of  the  House  of  Represen- 
tatives, n.  26. 

Wisconsin.  Qualifications  for  suffrage,  n.  17.  Six  representatives 
n.  24.  Population  in  each  decade,  n.  24,  pp.  69,  70.  As- 
signed to  seventh  judicial  circuit,  n.  197,  p.  192.  Ad- 
mitted into  the  Union,  n.  230.  Ratified  the  thirteenth 
amendment,  n.  274 ; the  fourteenth,  n.  275. 

Witherspoon,  John,  of  New  Jersey.  Signed  Declaration  of 
Independence,  p.  7.  And  the  Articles  of  Confederation, 

P* 

W itness  against  himself.  Nor  shall  any  person  be  compelled,  in 
any  criminal  case,  to  be  a witness  against  himself  Amend- 
ments   

This  would  be  contrary  to  republican  principles ; con- 
fined to  criminal  cases,  n.  256. 

"Witnesses  against  him.  In  all  criminal  prosecutions,  the  accused 
to  be  confronted  with  the  witnesses  against  him.  Amend- 
ments  

“■Accused*’  defined,  n.  260. 

Witnesses  in  his  favor.  In  all  criminal  prosecutions,  the  accused 
to  have  compulsory  process  for  obtaining  witnesses  in  his 

favor.  Amendments 

“Compulsory  process”  defined,  n.  261. 

Witnesses.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or 

• on  confession  in  open  court 

Refers  to  proofs  on  trial,  and  not  to  preliminary  hearing  ; 
“overt  act  treason  ” defined,  n.  216. 

Wolcott,  Oliver,  of  Connecticut.  Signed  Articles  of  Confedera- 
tion, p.  21. 

Writ  of  habeas  corpus.  The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended  unless,  when  in  cases  of 

rebellion  or  invasion,  the  public  safety  may  require  it 

“Privilege”  defined;  Bates’s  opinions  on  President’s 
suspension  of  the  writ,  n.  140.  Habeas  corpus  defined; 
the  President  not  amenable  to  the  writ;  a writ  of  uni- 
versal right  ex  merito  justitice  ; when  first  suspended ; 
When  the  federal  courts  may  issue  the  writ;  the  power 
of  the  State  courts  to  issue,  n.  141,  pp.  141, 142.  Can  only 
bo  suspended  by  act  of  Congress.  The  power  of  the  State 


Art.  Sec.  cl 


1 8 I 


5 


6 

8 8 1 


19  2 


pp. 

22,53 

28,94 


44,258 

45, 268 
45,263 
88,211 

80,140 


INDEX, 


611 


Art.  sec.  cl.  pp. 

courts  over  persons  held  in  military  service  discussed; 
ruling  in  Vallandigharn’s  case;  act  of  3d  March,  sus- 

? ending  the  writ;  President’s  proclamation,  n.  141,  p.  143. 

nvalidity  of  the  writ  in  Mrs.  Surratt’s  case ; suspension 
of  the  writ  does  not  authorize  arrest,  but  denies  the  writ 
to  the  prisoner ; this  denied  in  contempt  cases,  n.  141, 
p.  144.  Minors  above  eighteen  may  enlist  in  the  navy  with- 
out consent  of  parents  or  guardians;  Stanbery’s  opinion 
in  Gormley’s  case ; demarcation  between  the  powers  of 
the  United  States  and  the  State  courts;  the  whole  sub- 
ject discussed,  n.  141,  pp.  141-146. 

(See  Habeas  Corpus.) 

W-rit  of  right.  The  habeas  corpus  is  a,  n;  141. 

Writings.  Exclusive  right  to  writings  may  be  secured  by  authors 

for  a limited  time 1 8 8 29,121 

Object  of  this  power  of  Congress;  “author”  defined; 
copyrights,  how  secured  ; limitation  of  the  power,  107. 

Wythe,  George,  of  Yirginia.  Signed  the  Declaration  of  Inde- 
pendence, p.  8. 

Yeas  and  nays  of  the  members  of  either  house  of  Congress,  on 
any  question,  shall,  at  the  desire  of  one-fifth  of  those 

present,  be  entered  on  the  journal. ... 1 5 3 26, 87 

“ Yeas  and  nays”  defined,  n.  51,  p.  88. 

Yeas  and  nays.  Votes  in  the  two  houses  of  Congress,  on  passage 
of  any  bill,  order,  resolution,  or  vote,  returned  with  ob- 
jections by  the  President,  shall  be  taken  by  yeas  and 

nays 1 7 2<fc3  27,91 

(See  Veto—  Votes.) 


INDEX  TO  THE  SUPPLEMENT 


Those  wishing  to  consult  the  analytical  index  will  turn  to  the  preceding 
pages,  and  as  every  noun  and  phrase  in  the  Constitution  are  there  made 
leading  words,  and  the  clause  where  they  occur  is  reprinted,  the  system 
is  more  perfect  than  is  possible  in  any  mere  abridgement.  The  following 
index  is  therefore  chiefly  devoted  to  the  notes  of  the  supplement.  Where 
not  otherwise  indicated,  the  references  are  to  the  numbers  of  the  notes 
where  the  subject  is  found ; and  in  connection  with  them  the  reader  is 
advised  in  all  cases  to  consult  the  original  texts. 


A. 

Abandonment.  To  serve  as  a member  of  the  legislature  pending  a contest  for  a seat,  does 
not  seem  to  be  an  abandonment  of  the  contest.  356. 

Ability.  The  President’s  oath  to  execute  to  the  best  of  his  ability.  Art.  II,  sec.  1,  cl. 
7,  p.  406. 

Acceptance.  As  may  by  cession  of  particular  States  and  acceptance  of  Congress,  become 
the  seat  of  government  of  the  United  States.  Art.  I,  sec.  8,  cl.  17,  p.  366. 

Account.  A regular  statement  and  account  of  the  receipts  and  expenditures  of  all  pub- 
lic money  shall  be  published  from  time  to  time.  Art.  I,  sec.  9,  cl.  7,  p.  393. 

Accusation.  And  the  accused  shall  be  informed  of  the  nature  and  form  of  the  accusa- 
tion. Art.  VI,  p.  474.  This  clause  clearly  defined.  491. 

Accused.  The  accused  shall  be  confronted  with  the  witnesses  against  him,  and  shall 
have  compulsory  process  for  obtaining  witnesses  in  his  favor.  Art.  VI,  p.  474. 

Acts.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State.  Art.  IV,  sec.  1,  p.  477. 

Adjourn.  Neither  House,  without  the  consent  of  the  other,  shall  adjourn,  &c.  Art. 
I,  sec.  5,  cl.  4,  p.  361. 

Adjournment.  Less  than  a majority  may  adjourn  from  day  to  day.  Art.  I,  sec.  5,  cl.  1, 
p.  337. 

In  case  of  disagreement  between  the  two  Houses  with  respect  to  time,  the 
President  may  adjourn  to  such  time  as  he  shall  think  proper.  Art.  II,  sec.  3,  p. 

420: 

Admiralty.  To  all  cases  of  admiralty  and  maritime  jurisdiction.  Art.  Ill,  sec.  2,  cl.  1, 
p.  429.  This  refers  to  a system  co-extensive  with  the  whole  country.  446.  The 
laws  of  the  States  giving  liens  cannot  be  enforced  in  admiralty.  Id. 

Advice.  Treaties  are  made  by  and  with  the  advice  of  two-thirds  of  the  Senators  pres- 
ent; and  the  President  shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  ambassadors,  other  public  ministers  and  consuls, 
and  all  other  officers.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

African.  Not  allowed  to  acquire  citizenship  prior  to  the  XIVth  amendment.  500. 

Age.  For  a Representative.  Art.  I,  sec.  2,  cl.  2,  p.  305.  For  Senator.  Art.  I,  sec.  3,  cl. 
3,  p.  312. 

No  person  shall  be  eligible  to  the  Presidency  who  shall  not  have  attained  the 
age  of  thirty-five  years.  Art.  II,  sec.  1,  cl.  4,  p.  404. 

Twenty-one  years  of  age  recognized  as  the  year  of  male  citizens  being  entitled 
to  vote.  Art.  XIV,  sec*  2,  p.  488. 

(613) 


I 


614 


INDEX. 


Agreement.  No  State  shall,  without  the  consent  of  Congress,  enter  into  any,  or  into  a 
compact  with  another  State  or  with  a foreign  power.  Art.  I,  sec.  10,  cl.  3,  p.  397. 

Aid.  In  adhering  to  the  enemies  of  the  United  States,  giving  them  aid  and  comfort. 
Art.  Ill,  sec.  3,  cl.  1,'p.  443. 

Alien  Enemy.  May  be  sued  during  war.  377. 

Aliens.  Further  rights  of  suffrage  given  to.  299. 

Alliance.  No  State  shall  enter  into  any.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Alter.  The  word  defined  as  to  the  power  of  Congress  over  elections.  332. 

Ambassadors.  The  President  appoints  ambassadors,  other  public  ministers  and  con- 
suls, and  all  other  officers.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

The  President  shall  receive  ambassadors  and  other  public  ministers.  Art.  II, 
sec.  3,  p.  420.  Senators  are  not.  336,  p.  341. 

To  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls.  Art. 
Ill,  sec.  2,  cl.  1,  p.  429.  This  does  not  prevent  the  giving  original  jurisdiction  to 
the  inferior  courts  to  suits  against  consuls  and  vice-consuls.  444.  It  is  in  the 
power  of  Congress  to  give  original  jurisdiction  to  the  inferior  courts  in  suits 
against  consuls  and  vice-consuls.  444.  Consuls  not  ambassadors.  445. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls,  &c.,  the 
Supreme  Court  shall  have  original  jurisdiction.  Art.  Ill,  sec.  2,  cl.  2,  p.  439. 

Amendments.  Fifteenth  erased  the  word  “white”  as  a requisite  for  suffrage.  299. 

Art.  XII,  in  regard  to  the  election  of  President  and  Vice-President.  P.  401. 

The  Congress  may  provide  for  amendments  to  the  Constitution,  Ac.  Art.  V,  p. 
459. 

The  first  ten  amendments  to  the  Constitution  were  not  intended  to  limit  the 
power  of  the  State  governments  with  respect  to  their  own  citizens,  but  to  operate 
upon  the  National  Government  alone.  483,  484,  488,  490,  491,  493. 

Appeal.  When  none  lies  in  habeas  /corpus  cases.  396. 

Appellate  Jurisdiction.  In  what  cases  the  Supreme  Court  has.  Art.  Ill,  sec.  2,  cl.  2, 
p.  439. 

Where  it  is  appellate  it  is  to  review  the  proceedings  of  inferior  jurisdiction. 
458. 

Application.  On  application  of  the  Legislature  or  of  the  Executive  when  the  Legislature 
cannot  be  convened,  the  United  States  shall  protect  each  State  against  domestic 
violence.  Art.  IV,  sec.  4,  p.  458. 

If  the  Legislature  be  in  session,  the  call  should  come  from  it.  476. 

The  power  to  suppress  rebellion  is  found  in  this  grant.  476. 

Appointments.  The  President  shall  appoint  the  judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States,  whose  appointments  are  not  otherwise  pro- 
vided for,  and  which  shall  be  established  by  law.  But  appointments  of  inferior 
officers  may  be  vested  in  the  courts  of  law  or  in  the  heads  of  departments.  Art. 
II,  sec.  2,  cl.  2,  p.  412. 

The  power  of,  and  removal  are  not  executive  powers.  408. 

The  distinction  between  removal  and  appointment.  425. 

Apportioned.  Representatives  shall  be  apportioned  among  the  several  States  accord- 
ing to  their  respective  numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  Art.  I,  sec.  2,  cl.  3,  p.  305.  Criticism  upon. 
302.  How  far  the  clause  furnishes  a principle.  304.  Not  changed  by  emancipa- 
tion until  the  new  census.  304.  Defined.  304.  The  number  and  apportionment 
according  to  the  last  census  including  fractions.  506. 

Appropriation.  No  appropriation  of  money  for  the  use  of  the  armies  shall  be  for  a 
longer  term  than  two  years.  Art.  I,  sec.  8,  cl.  12,  p.  366.  Congress  thus  reserves 
the  power  to  prevent  an  improper  use  of  money  by  the  President.  380.  The 
reason  of  limitations  of,  to  two  years.  380. 

Arbitrary  Power.  None  in  America.  352,  p.  359.  But  something  like  it.  Id. 

Armies.  Congress  has  power  to  raise  and  support  armies.  Art.  I,  sec.  8,  cl.  12,  p.  366. 
The  power  is  plenary,  but  it  does  not  authorize  the  President  to  suspend  the 
habeas  corpus . 379.  The  control  over,  by  the  United  States  is  plenary.  379. 

Arms.  The  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed.  Art.  II, 
p.  469.  This  only  restricts  the  powers  of  the  National  Government.  484. 

Army  and  Navy.  The  President  shall  be  Commander  in  Chief  of  the  Army  and  Navy 
of  the  United  States.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

Arrest.  The  privilege  from,  does  not  exclude  the  service  of  process  where  no  impris- 
onment, restraint  of  liberty,  or  bail  is  required.  355. 

Arsenals.  Exclusive  legislation  over.  Art.  I,  sec.  8,  cl.  17,  p.  366. 

Articles.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  Art.  I, 
sec.  9,  cl.  5,  p.  392. 

Arts.  Congress  has  the  power  to  promote  the  progress  of  science  and  useful  arts,  Ac. 
Art.  I,  sec.  8,  cl.  8,  p.  365. 


INDEX. 


615 


Assigned  Instruments.  How  far  the  subject  of  federal  jurisdiction.  454. 

Attainder.  [See  Bill  of  Attainder.]  No  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture  except  during  the  life  of  the  person  attainted.  Art.  Ill,  sec. 
3,  cl.  2,  p.  443. 

Attendance.  Of  absent  members  may  be  compelled  by  less  than  a majority,  in  such, 
manner  and  under  such  penalties  as  each  House  shall  provide.  Art.  I,  sec.  5, 
cl.  1,  p.  337,  n.  461. 

During  the  attendance  of  Senators  and  Representatives  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same,  they  shall  be 
privileged  from  arrest  in  all  cases  except  treason,  felony,  and  breach  of  the 
peace.  Art.  I,  sec.  6,  cl.  1,  p.  361,  n.  355. 

Authority.  To  the  States  is  reserved  the  authority  of  training  the  militia  according  to 
the  discipline  prescribed  by  Congress.  Art.  I,  sec.  8,  cl.  16,  p.  366. 

Congress  may  exercise  exclusive  authority  over  all  places  purchased,  &c. 
for  forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings.  Art.  I, 
sec.  8,  cl.  17,  p.  366. 

Fugitive  shall,  on  the  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

Authors.  Congress  may  secure  to  them,  for  a limited  time,  exclusive  right  to  their 
writings.  Art.  I,  sec.  8,  cl.  8,  p.  365. 


B. 


Bail.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed.  Art.  VIII, 
p.  476. 

Bankruptcy.  Congress  shall  have  power  to  establish  uniform  laws  on  the  subject  of 
bankruptcies  throughout  the  United  States.  Art.  I,  sec.  8,  cl.  4,  p.  365. 

Behavior.  The  judges  shall  hold  their  offices  during  good  behavior.  Art.  Ill,  sec.  2, 
p.  427. 

Belknap’s  Case.  P.  432. 

Bill  of  Attainder.  [See  Attainder.]  No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed.  Art,  I,  sec.  9,  cl.  3,  p.  390  The  term  defined.  397.  The  confiscation  act 
was  not  a.  397. 

No  State  shall  pass  any  bill  of  attainder.  Art.  I,  sec.  10,  cl.  1.  p.  393. 

Bills,  All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives, 
but  the  Senate  may  propose  or  concur  in  amendments  as  in  other  bills.  Art  I, 
sec.  7,  cl.  1,  p. 363.  Every  bill  shall  be  sent  to  the  President  for  his  approval  or 
objections,  and  can  only  be  passed  over  the  latter  by  a two-thirds  vote.  If  he 
return  it  not,  it  may  become  a law.  Id.,  ol,  2.  The  practice  after  veto.  367. 

Bills  of  Credit.  No  State  shall  emit.  Art.  I,  sec,  10,  cl.  1,  p.  393.  Congress  may  author- 
ize the  emission  thereof.  362.  Treasury  notes  and  bank  notes  are.  Id.  The 
amounts  issued  under  different  acts  of  Congress.  Id.  Further  defined.  Id. 
State  bank  notes  were  not.  399. 

Blessings  of  Liberty.  In  the  preamble.  P.  301. 

Bonds.  After  town  or  county,  have  been  issued  and  circulated  the  question  becomes 
commercial.  388. 

Boundaries.  The  question  of  boundary  between  two  States  is  within  the  original  juris- 
diction of  the  Supreme  Court.  447. 

Bounties.  Including  debts  incurred  for  payment  of  pensions  and  bounties,  &e.  Art. 
XIV,  sec.  4,  p.  496. 

Breach.  Of  the  peace,  treason,  and  felony  not  among  the  privileges  from  arrest.  Art. 
I,  sec.  6,  cl.  1,  p.  361. 

Bribery.  All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  im- 
peachment for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors. Art.  II,  sec.  4,  p.  423. 

Buildings.  Exclusive  legislation  over,  needful.  Art.  I,  sec.  8 cl.  17,  p.  366. 

Burden  of  Proof,  As  to  qualification  of  members.  348. 

a 


Cabinet.  The  heads  of  departments  are  not  expected  to  be.  416.  The  practice  under 
Washington  and  Adams.  Id.  What  of  the  proceedings  may  be  proved.  Id. 
Cabinet  Officers.  Those  who  have  been  temporarily  appointed.  422. 

Capitation.  No  capitation  or  other  direct  tax  shall  be  laid  unless  in  proportion  to  the 
census  or  enumeration  hereinbefore  directed  to  be  taken.  Art.  I,  sec.  9,  cl.  4, 


p.  392. 

Captured  and  Abandoned  Property. 


Right  to,  during  the  civil  war.  378. 


44 


616 


INDEX 


Captures.  Congress  has  power  to  make  rules  concerning  captures  on  land  and  water. 
Art.  I,  sec.  8,  cl.  11,  p.  366.  The  term  defined.  383.  Must  be  according  to  laws 
of  war.  383.  Difference  between,  on  land  and  water.  384. 

Care.  The  President’s  duty  to  take  care  defined.  429. 

Carriers.  A civil  action  will  lie  against  carriers  and  postmasters  for  negligence.  372. 

Cases.  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity  affecting  ambas- 
sadors of  admiralty  and  maritime  jurisdiction,  &c.  Art.  Ill,  9ec.  2,  cl.  1,  p 429. 

In  all  cases  affecting  ambassadors,  other  public  ministers, and  consuls,  &c.,  the 
Supreme  Court  shall  have  original  jurisdiction.  Art.  Ill,  sec.  2,  cl. 2,  p,  439.  In  all 
other  cases  has  appellate  jurisdiction.  Id. 

Census.  No  capitation  or  other  direct  tax  shall  be  laid  unless  in  proportion  to  the  cen- 
sus or  enumeration  hereinbefore  directed  to  be  taken.  Art.  I,9ec.  9,  cl.  4,  p. 
392. 

Certificate.  Canvassers  cannot  reject  one  that  is  fair  upon  its  face.  341.  The  Gov- 
ernor may  recall,  upon  the  ground  of  fraud.  344.  The  House  may  go  behind 
it,  re-count,  and  purge  the  polls.  344. 

Cession.  As  may  by  cession  of  particular  States  and  acceptance  of  Congress  become 
the  seat  of  government  of  the  United  States.  Art.  I.  sec.  8,  cl.  17.  p.  366. 

Chattels.  When  they  were  counted  money.  371.  The  fiction  that  the  law  of  domicile 
draws  the  personal  property  after  him  yields  to  the  actual  fact.  466. 

Chief  Justice.  His  oath  as  presiding  officer  in  the  trial  of  the  President.  322.  Howhe 
presides,  debated  and  settled.  323.  The  rule.  P.  324.  Death  of  Chase.  430. 
Appointment  of  Waite.  Id. 

Christian  Sabbath.  The  first  amendment  does  not  prohibit  the  States  from  preventing 
the  disturbance  of  worship  on  Sunday.  481. 

Citizens.  Seven  years  for  a member  of  the  House,  and  nine  years  for  a Senator.  Art. 
I,  sec.  2,  cl.* 2;  sec.  3,  cl.  3,  pp.  305,  316. 

No  person  except  a natural  born  citizen  shall  be  eligible  to  the  office  of  Presi- 
dent. Art.  2,  sec.  1,  cl.  4,  p.  404. 

Between  citizens  of  different  States.  Art.  3,  sec.  2,  cl.  1,  p.  429.  How  far  a cor- 
poration is  a citizen.  450.  The  jurisdiction  is  absolutely  concurrent.  451.  The 
power  of  Congress  is  not  limited  by  the  character  of  the  controversy.  Id.  Under 
this  section  arises  the  transfer  of  causes.  452.  The  acts  of  Congress  on  the  sub- 
ject enumerated.  Id.  The  reason  of  the  act9.  Id.  The  act  of  1867.  Id.  How 
far  the  court  has  and  has  not  discretion.  453.  The  exception  in  favor  of 
assignees  of  negotiable  instruments.  454.  How  the  Federal  question  is  involved 
455.  • 

The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and  immunities 
of  the  citizens  in  the  several  States.  Art.  IV,  sec.  2,  cl.  1,  p.  453.  Corporations 
are  not  citizens  within  this  clause.  468,  469. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the  Uniied 
States  by  citizens  of  another  State  or  by  citizens  or  subjects  of  any  foreign  State. 
Art.  XI,  p.  478. 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States,  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States.  Art.  XIV,  sec.  1.  p.  482. 

When  the  right  to  vote  is  denied  to  the  male  inhabitants  of  such  State  being 
twenty-one  years  of  age,  and  citizens  of  the  United  States  are  in  any  way 
abridged,  Ac.  Art.  XIV,  sec.  2,  p.  488. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States,  or  by  any  State,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.  Art.  XV,  sec.  1,  p.  496.  This  is  a negative  pregnant  with  an 
affirmative.  513.  It  confers  no  right,  but  is  an  inhibition.  Id.  It  destroys  all 
distinction  between  the  races  as  to  suffrage.  Id.  Of  the  United  States  seven 
years.  P.  305,  cl.  2.  What  Mexicans  did  not  become  citizens.  298. 

Claim.  All  obligations  and  claims  for  the  loss  of  slaves  shall  be  held  illegal  and  void. 
Art.  X IV,  sec.  4,  p.  496. 

Classes.  Of  Senators,  how  vacated.  P.  314,  cl.  2. 

Citizenship.  Distinction  between  a citizen  of  the  United  States  and  State  attempted. 
500. 

Civil  Officers.  The  President,  Vice  President,  and  all  civil  officers  of  the  United  States, 
shall  be  removed  from  office  on  impeachment,  Ac.  Art.  II,  sec.  4,  p.  423.  The 
Secretary  of  War  is  a civil  officer.  Belknap’s  case,  432. 

Coin.  No  State  shall  make  anything  but  gold  and  silver  coin  a tender  in  payment  of 
debt.  Art.  I,  sec.  10,  cl.  1,  p.  393.  To  coin  is  simply  to  give  the  stamp  a govern- 
mental power.  370.  The  several  coinage  acts  or  the  United  States.  370. 


INDEX 


617 


Color.  On  account  of  race,  color,  or  previous  condition  of  servitude.  Art.  XV,  sec.  1. 
p.  496. 

Comfort.  In  adhering  to  the  enemies  of  the  United  States,  giving  them  aid  and  com- 
fort. Art.  Ill,  sec.  3,  cl.  1,  p.  443. 

Commander  in  Chief.  The  President  shall  be,  of,  &c.  Art.  II,  sec.  2,  cl.  1,  p.  407.  His- 
tory of  the  commission  to  Washington.  415. 

Commerce.  Congress  shall  have  power  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes.  Art.  I,  sec.  8,  cl.  3.  p.  365. 
The  term  defined.  363.  What  commerce  among  the  several  States  includes. 
364.  How  far  exclusive  in  Congress.  365.  Quarantine  regulations.  366.  Navi- 
gation. 367.  With  the  Indian  tribes.  368. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  State  over  those  of  another.  Art.  I,  sec.  9,  cl.  6,  p.392.  To  hinder 
would  be  a casus  omissus.  296. 

Includes  business  carried  on  by  corporations  and  individual  traders.  363.  And 
railroads  operating  continuous  lines.  364.  The  question  of  power  has  always 
been  difficult.  365.  The  States  may  enact  quarantine  laws,  but  not  to  interfere 
with  commerce.  366.  As  used  in  the  Constitution,  it  includes  navigation,  traffic, 
and  trade.  367.  Taxes  and  inspection  laws  are  under  its  control.  367.  The  In- 
dian tribes  subject  to  internal  revenue.  368.  Their  countries  compose  part  of 
the  United  States.  Id. 

Commercial  Paper.  Town  or  county  bonds  are.  3S8. 

Commissions.  By  granting  commissions  which  shall  expire  at  the  end  of  their  next 
session.  Art.  II,  sec.  2,  cl.  3,  p.  417.  History  and  form  of  commissions  to  officers. 
415. 

Common  Defense.  To  provide  for  the  common  defense  and  general  welfare  of  the 
United  States.  Art.  I,  sec.  8,  el.  1,  p.  365.  General  welfare  is  the  same  as  com- 
mon defense.  How  provided  for.  295. 

Common  Law.  In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by 
a jury  shall  be  otherwise  re-examined  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law.  This  article  explained.  492,  493. 
Art.  VII,  p.  476. 

And  the  acts  of  Congress  form  the  rules  of  practice.  394. 

Compact.  No  State  shall,  without  the  consent  of  Congress,  enter  into  any  Compact 
or  agreement  with  another  State,  or  with  a foreign  power.  Art.  I,  sec.  10,  cl.  3, 
p.  397. 

Compensation.  The  President  shall,  at  stated  times,  receive  for  his  services  a compen- 
sation which  shall  neither  be  increased  nor  diminished  during  the  period  for 
which  he  shall  have  been  elected.  Art.  II,  sec.  1,  cl.  6.  p.  405. 

The  judges  shall  receive  for  their  services  a compensation  which  shall  not 
be  diminished  during  their  continuance  in  office.  Art.  Ill,  sec.  2,  p.  427. 
Chief  Justice  Taney’s  views.  438.  The  income  tax  could  not  apply  to  the 
judges.  Id. 

Criticism  upon  the  time  at  which  the  President’s,  may  be  increased.  413. 

Compulsory  Process.  The  accused  shall  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor.  Art.  VI,  p.  474. 

Concurrence.  Every  order,  resolution,  or  vote,  where  it  is  necessary,  shall  be  pre- 
sented to  the  President,  as  in  case  of  a bill.  Art.  I,  sec.  7,  cl.  3,  p.  363. 

Concurrent  Jurisdiction.  The  States  cannot  impair  the  Federal  jurisdiction  between 
citizens  of  different  States.  451. 

Concurrent  Powers.  State  and  Federal.  288.  As  to  taxation.  358. 

Confederate  States.  Were  and  were  not  a de  facto  government.  384. 

Confederate  Treasury  Notes.  Recognized  as  having  some  validity.  384. 

Confederation.  No  State  shall  enter  into  any.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Its  debts  and  engagements  transferred  against  the  United  States.  Art.  VI,  cl. 
1,  p.  459. 

Confession.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open  court.  Art.  Ill,  sec.  3, 
cl.  1,  p.  443. 

Confiscation.  The  act  has  two  distinct  parts.  397.  Rights  of  intervenors.  Id.  Under 
the  confiscation  act  of  1862  the  life  estate  of  the  offender  passed,  and  upon  his 
death  the  fee  passed  to  his  heirs.  461. 

Conflict.  If  there  be  a question  of,  arising  under  the  laws  of  the  United  States,  the 
decision  belongs  to  the  Federal  courts.  395. 

Conflict  of  Jurisdiction.  When  it  exists  the  Federal  courts  are  first  to  determine.  395. 

Conflict  of  Laws.  The  rights  of  corporations  in  the  different  States.  468,  469. 

Congress.  Of  the  United  States  consists  of  Senate  and  House  of  Representatives.  Art. 
I,  sec.  1,  p.  303.  Cannot  be  limited  by  the  courts.  297. 


618 


Index 


Congress—  Continued. 

May  at  any  time,  by  law,  make  or  alter  the  regulations  as  to  the  times,  places, 
and  manner  of  holding  elections,  except  as  to  the  places  of  choosing  Senators. 
Art.  I,  sec.  4,  cl.  1,  p.  334.  The  arguments  and  precedents.  332.  Shall  assemble 
at  least  once  in  every  year.  P.334,  cl.  2.  Number  and  times  of  sessions.  333. 
Special  sessions.  333,  p.  336.  The  eighteen  enumerative  powers  of.  Pp.  365-307. 

Powers  of.  Taxes,  duties,  imposts,  and  excises  ; money;  commerce;  naturaliza- 
tion and  bankruptcy:  coinage  and  weights  and  measures;  counterfeiting;  post 
offices  and  post  roads ; science  and  art;  authors  and  inventors  ; inferior  judicial 
tribunals;  piracies,  felonies,  and  offenses;  war,  marque,  and  reprisals  and  cap- 
tures; armies;  navy;  government  of  both;  militia;  Federal  district,  forts  and 
arsenals ; necessary  and  proper  laws.  Art.  I,  sec.  8,  cl.  1-18. 

No  person  holding  any  office  under  the  United  States  shall,  without  the  con- 
sent of  the  Congress,  accept  of  any  present.  &c.,  from  any  foreign  power.  Art.  I, 
sec.  9,  cl.  8,  p.  393.  Nor  shall  any  State,  without  such  consent,  lay  any  imposts 
or  duties  on  imports  or  exports.  Id.,  sec  10,  cl.  2,  p.395.  Nor  lay  any  duty  of 
tonnage,  nor  keep  troops,  &c.  Id.,  cl.  3,p.  397. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion  or  pro- 
hibiting the  free  exercise  thereof.  Art.  I,  p 466. 

Presidential  electors  to  be  equal  to  the  whole  number  of  the  Senate  and  House. 
Art.  II,  sec.  1,  cl.  2,  p.  400. 

May  by  law  provide  for  the  case  of  removal,  death,  resignation,  or  inability  of 
both  President  and  Vice  President.  Art.  II,  sec.  1,  cl.  5,  p.  404.  Insanity  may  be 
included.  412. 

May  provide  for  the  appointments  of  inferior  officers  as  a thing  proper,  and 
vest  them  in  the  President  alone,  in  the  courts  of  law  and  heads  of  departments. 
Art.  II,  sec.  2,  cl.  2,  p.  412. 

The  President  shall,  from  time  to  time,  give  to  the  Congress  information  of 
the  state  of  the  Union.  Art.  II,  sec.  3,  p.  420. 

And  in  such  inferior  courts  as  the  Congress  may  from  ti^ne  to  time  ordain  and 
establish.  Art.  Ill,  sec.  1,  p.  42?. 

But  when  crimes  are  not  committed  in  any  State,  the  trial  shall  be  at  such 
place  or  places  as  Congress  may  by  law  have  directed.  Art.  Ill,  sec. 2,  cl.  3,  p.  443. 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason.  Art  III, 
sec.  3,  cl.  2,  p.  443. 

New  States  maybe  admitted  by  the  Congress  into  this  Union  under  certain 
restrictions.  Art.  IV,  sec.  3,  cl.  1,  p.  454. 

Shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regulations  re- 
specting the  territory  and  other  property  belonging  to  the  United  States.  Art. 
IV,  sec.  3,  el.  2,  p.  454. 

May  provide  for  amendments  to  the  Constitution.  Art.  V,  p.  459. 

Congress  shall  have  power  to  enforce  this  article  by  appropriate  legislation. 
Arts.  XIII,  XIV,  XV,  cl.  2,  pp.  478,  496,  497. 

No  person  shall  be  a Senator  or  Representative  in  Congress.  &c.,  who,  having 
taken  an  oath,  &c.,  shall  have  engaged  in  rebellion.  &c..  but  Congress  may  by  a 
vote  of  two-thirds  of  each  House  remove  such  disability.  Art.  XIV,  sec.  3,  p. 
493.  The  probable  numbers  who  incurred  this  disability,  and  have  been  relieved 
or  yet  remain  under  it.  512. 

Cannot  control  the  President’s  power  to  pardon.  419. 

Consent.  Purchased  by  the  consent  of  the  Legislature  for  the  erection  of  forts,  &c. 
Art.  I,  sec.  8,  cl.  17,  p.  366. 

Treaties  are  made  by  and  with  the  advice  of  two-thirds  of  the  Senators  pres- 
ent, and  the  President  shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint,  ambassadors,  other  public  ministers,  and  consuls, 
and  all  other  officers.  Art.  IT.  sec.  2,  cl.  2 p.  412.  Defined  and  illustrated.  42L 
Consideration.  The  President  shall  recommend  to  the  consideration  of  Congress  such 
measures  as  he  shall  judge  necessary  and  expedient.  Art.  II.  sec.  3,  p.  42/). 
Constitution.  And  all  other  powers  vested  by  this  Constitution  in  the  Government  of 
the  United  States,  <5fcc.  Art.  I,  sec.  8,  cl.  18,  p.  367. 

The  President’s  oath  to  preserve,  protect,  and  defend.  Art.  II,  sec.  1,  cl.  7,  p. 
400. 

Arising  under  this  Constitution,  the  laws  of  the  United  States,  and  treaties  mode 
or  which  shall  be  made  under  their  authority.  Art.  Ill,  sec.  2,  cl.  1,  p.429.  If  a 
case  arise  both  under  the  law  and  the  Constitution.  441. 

All  debts  contracted  and  engagements  entered  into  before  the  adoption  of  this 
constitution  shall  be  valid  against  the  United  States..  Art.  VI,  cl.  1,  p.  459. 

This  Constitution,  and  the  law’s  of  the  United  States,  and  treaties  Ac.,  shall  be 
the  supreme  law  of  the  land.  Art.  VI,  cl.  2,  p.  460.  How  the  Constitution  is 
supreme  and  who  is  to  judge.  478. 


INDEX. 


619 


Constitution — Continued. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be  construed  to 
disparage  others  retained  by  the  people.  Art.  IX,  p.  477. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively  or  to  the  peo- 
ple. Art.  X,  p.477. 

Divisions  of  powers  of  government.  288. 

The  Constitution  was  not  framed  merely  to  guard  against  danger  from  abroad, 
but  chiefly  to  secure  union  and  harmony  at  home.  495. 

Established  for  the  United  States  of  America.  Preamble,  p.  301 

Every  officer  must  judge  for  himself  in  the  first  instance.  408. 

The  President  and  Congress  may  in  proper  cases  decide  what  laws  arc  consti- 
tutional. 419. 

How  ratified,  and  by  whom  signed.  P.  464. 

Only  citizens  of  the  United  States  are  placed  under  the  protection  of  section 
one  of  the  fourteenth  amendment.  502.  By  whom  the  Constitution  of  the  United 
States  was  established.  P.485.  Expounded  as  to  privileges  and  immunities.  503. 

Consuls.  In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  the 
Supreme  Court  shall  have  original  jurisdiction.  Art.  Ill,  sec.  2,  cl.  2,  p.  439. 

Contempt.  How  the  House  punishes  its  members.  348.  How  it  punished  Pat.  Woods. 
349.  Comments  upon  the  law  of  that  case.  349.  The  great  case  of  Doyle  v.  Fal- 
coner. 350,  p.356.  The  power  of  the  assembly  to  punish  for  contempt  denied.  350. 
Stewart’s  case  turned  upon  Anderson  and  Dunn.  351.  That  case  criticised.  352. 
How  far  an  appellate  tribunal  will  revise  a judgment  for.  392. 

Contested  elections.  West  Virginia,  history  of,  as  to  elections.  330.  The  statute  for. 
334.  Notice  of,  and  answer.  Id.  Contest  in  the  Senate.  335.  Caldwell’s  case.  Id. 
The  author’s  views.  336,  p.  341.  Contests  in  House.  337.  As  to  frauds  in  natural- 
ization. 337.  Some  general  rules.  338.  As  to  gross  frauds.  338.  Illegal  votes.  Id. 
What  the  notice  should  specify.  339.  Mere  irregularities.  340  Officers  not  sworn. 
Id.  Mere  irregularities  without  unfairness  not  fatal  341.  The  statutes  general 
directory.  Id.  Plurality  of  votes  the  great  point.  Id.  The  general  points.  341, 
p.345.  Liberality  of  practice.  342.  Rignts  of  voters  should  not  be  compromised. 
Id.  Failure  to  take  the  oath  without  fraud  not  fatal.  Id.  Elector  cannot  be  com- 
pelled to  disclose  his  ballot.  Id.,  p.  347.  The  returns.  343.  Power  of  the  governor 
to  recall  the  certificates.  344.  The  great  New  Jersey  case.  344.  The  House  may 
decide  all  questions  of  law  and  fact.  Id.  As  to  the  qualifications  of  members. 
345.  Disqualification  for  infamy.  Id.  For  inability  to  take  the  test  oath.  346. 
Rule  where  the  candidate’s  disqualifications  are  known.  Id.,  p.  350. 

Contracts.  No  State  shall  pass  any  law  impairing  the  obligation  of  contracts.  Art.  I, 
sec.  10,  cl.  1,  p.  393.  The  law  which  annihilates  all  remedy  destroys.  400.  If  valid 
in  inception  it  remains  so.  Id.  A State  cannot  take  away  the  right  to  pay  taxes 
with  bank  notes.  Id.,  p.  394.  A State  may  exempt  corporations  from  the  payment 
of  taxes.  401.  The  State  may  pass  laws  to  change  the  remedy.  402.  And  may  take 
it  away  if  the  State  be  a party.  Id.  The  statute  of  limitation  belongs  to.  Id. 

The  effect  of  the  XII  Ith  amendment  upon  contracts.  499.  Slaves  were  chattels 
and  a valuable  consideration  for  a contract.  498.  The  constitution  of  Arkansas, 
annulling  such  contracts,  was  itself  null,  because  it  impaired.  498.  The  .war- 
ranty of  a slave  for  life  does  not  warrant  against  a vis  major.  Id.  The  loss  fell 
upon  the  owners  at  the  date  of  emancipation.  Id. 

Controversies.  The  judicial  power  extends  to  controversies  to  which  the  United  States 
shall  be  a party;  between  two  or  more  States;  between  a State  and  citizens  of 
another  State  ^between  citizens  of  different  States  ; between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States,  and  between  a State  or  the 
citizens  thereof  and  foreign  States,  citizens  or  subjects.  Art.  Ill,  sec.  2,  cl.  1, 
p.  429. 

Where  the  value  in  controversy  shall  exceed  twenty  dollars  the  right  of  trial 
by  jury  shall  be  preserved.  Art.  VII,  p.  476.  This  should  be  read  as  a substan- 
tial and  independent  clause.  492. 

Convention.  On  the  application  of  two-thirds  of  the  several  States  the  Congress  shall 
call  a convention  for  proposing  amendments  to  the  Constitution.  Art.  V,p.  459. 

To  form  the  constitutional,  history  of.  290. 

As  to  their  power  to  prescribe  the  times  and  places  of  holding  elections  and 
general  laws.  331.  I 

Conviction.  All  civil  officers  of  the  United  States  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors.  Art.  II,  sec.  4,  p.  423. 

Corporations.  How  far  they  are  citizens  within  the  Constitution  and  judiciary  act.  450 
They  cannot  migrate,  but  may  act  under  the  laws  of  States.  Id. 

Are  not  citizens,  entitled  to  privileges  and  immunities,  &c.  468,  469. 


620 


INDEX 


Corruption  of  Blood.  No  attainder  of  treason  shall  work  corruption  of  blood  ,or  for- 
feiture, except  during  the  life  of  the  person  attainted.  Art.  Ill,  sec.  3,  cl.  2,  p. 
443. 

Counsel.  The  accused  shall  have  the  assistance  of  counsel  for  his  defense.  Art.  VI, 
p.  474. 

Country.  Commercially,  this  is  but  one.  296. 

Court.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open  court.  Art.  Ill,  sec.  3,  cl. 

I,  p.  443. 

Courts  of  Law.  Congress  may  by  law  vest  the  appointment  of  such  inferior  officers  as 
they  think  proper  in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

Credit.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  Art.  IV,  sec.  1,  p.  447. 

Crimes.  All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. Art.  II,  sec.  4,  p.  423. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury,  and  in 
the  State  where  said  crime  shall  have  been  committed.  Art.  Ill,  sec.  2,  cl.  3,  p.  443. 

A person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice,  &c.,  shall  be  delivered  up.  Art.  IV,  sec.  2,  cl.  2.  p.  453. 

No  person  shall  be  held  to  answer  for  a capital  or  otherwise  infamous  crime, 
unless  on  a presentment  or  indictment  of  a grand  jury.  Art.  V,  p.  470.  The  in- 
dictment is  good  without  declaring  the  jurors  are  a grand  jury.  485  Except  as 
a punishment  for  crime  whereof  the  party  shall  have  been  duly  convicted.  Art. 
Xni,  cl.  1,  p.  478. 

Except  for  participation  in  rebellion  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty- one  years  of  age 
in  such  State.  Art.  XIV,  sec.  2,  p.  488. 

Committed  in  forts,  arsenals,  dock-yards,  &c.,  are  under  the  exclusive  juris- 
diction of  the  United  States.  386. 

Criminal  Case.  No  person  shall  be  compelled,  in  any  criminal  case,  to  be  a witness 
against  himself.  Art.  V,  p.  470. 

Criticism.  Upon  the  power  in  practice.  416.  Proceedings  in  Cabinet  not  allowed  as 
evidence.  Id. 

D. 

Dagger.  No  State  shall,  without  the  consent  of  Congress,  engage  in  war,  unless  actu- 
ally invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay.  Art.  I,  sec; 
10,  cl.  3,  p.  397. 

Except  in  cases  arising  in  the  land  and  naval  forces,  or  in  the  militia,  when  in 
time  of  war  or  public  danger.  Art.  V,  p.  470. 

Death.  In  case  of  the  death,  resignation,  &c.,  of  the  President,  who  shall  serve.  Art. 

II,  sec.  1,  cl.  5,  p.  404. 

Debate.  For  any  debate  or  speech  in  either  House,  the  members  shall  not  be  ques- 
tioned in  any  other  place.  Art.  I,  sec.  6,  p.  361. 

Debts.  To  pay  the  debts  of  the  United  States.  Art.  I,  sec.  8,  cl.  1,  p.  365.  Amount  of 
debts.  360. 

No  State  shall  make  anything  but  gold  and  silver  coin  a tender  in  payment  of 
debts.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

All  debts  contracted,  and  engagements  entered  into,  &c.,  to  be  valid  against 
the  United  States.  Art.  VI,  cl  1,  p.  459.  , 

De  Facto  Government.  A9  to  choice  of  Senators.  P.  314,  n.  311. 

The  sovereign  power  may  reside  in  a,  for  a time.  384.  The  term  defined.  Id. 
How  their  existence  may  be  maintained.  Id. 

Defense.  The  accused  shall  have  the  assistance  of  counsel  for  his  defense.  Art.  VI, 
p.  474. 

Delay.  No  State  shall,  without  the  consent  of  Congress,  engage  in  war,  unless  actu- 
ally invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay.  Art.  I,  sec. 
10,  cl.  3,  p.  397. 

Delegates.  Have  always  been  admitted  from  legally  organized  territories.  306.  New 
Mexico  not  entitled  to,  until  organized.  Id. 

Demand.  Shall,  on  demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

Departments.  Vested  in  any  department  or  officer  thereof.  Art.  I,  sec.  8,  cl.  18,  p.  3G7. 
Of  the  Government  are  co-ordinate.  478,  p.  461. 


INDEX. 


621 


Direct  Taxes.  Representatives  and  direct  taxes  shall  be  apportioned  according  to 
numbers.  Art.  I,  sec.  2,  cl.  3,  p.  305.  No  capitation  or  other  direct  tax  shall  be 
laid,  unless  in  proportion  to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken.  Art.  I,  see.  9,  cl.  4,  p.  392.  Query  as  to  the  fourteenth  amendment 
upon  direct  taxes.  302.  Defined.  303. 

Disability.  But  Congress  may,  by  a vote  of  two-thirds  of  each  House,  remove  such 
disability.  Art.  XIV,  sec.  3,  p.493.  The  probable  numbers  who  incurred  this 
disability,  and  who  have  been  relieved  or  yet  remain  under  it.  512. 

Disagreement.  In  case  of  disagreement  between  the  two  Houses  with  respect  to  time, 
the  President  may  adjourn  them  to  such  time  as  he  shall  think  proper.  Art,  II, 
sec.  3,  p.  420. 

Discipline.  Congress  may  prescribe  the  discipline  of  the  militia.  Art.  I,  sec.  8,  cl.  1G, 
p.  366. 

Discoveries.  Congiess  may  secure,  for  limited  time,  to  inventors  exclusive  right  to 
their  discoveries.  Art.  I,  sec.  8,  cl.  8,  p.  365. 

Discretion.  All  the  duties  of  the  President  are  prescribed  by  the  Constitution  and  the 
law.  420. 

Disqualification.  For  office  of  honor,  trust,  or  profit  under  the  United  States.  Art.  I, 
sec.  3,  cl.  7,  p.  330. 

District.  By  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously  ascertained  by  law. 
Art.  VI,  p.  474. 

Districting  the  States.  The  effect  of  disregarding  the  mandatory  clause.  329.  The 
effect  of  not  districting.  331. 

District  of  Columbia.  Congress  has  power  to  exercise  exclusive  legislation,  &c.,  over 
such  place  as  may  become  the  seat  of  government  of  the  United  States.  Art.  I, 
sec.  8,  cl,  17,  p.  366.  Is  a corporation  liable  for  the  acts  of  its  officers.  385. 

Number  of  inhabitants  by  the  ninth  census.  506. 

Disturbance  of  Assemblies.  The  power  to  punish  for,  belongs  to  the  States.  483. 

Dock-Yards.  Exclusive  legislation  over.  Art.  I,  sec.  8,  cl.  17,  p.  366. 

Domestic  Tranquillity.  IIow  secured.  P.  303,  n.  294.  ; 

Due  Process  of  Law.  No  person  shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law.  Art.  V,  p.  470.  This  means  judicial  process,  not  by  the  Ex- 
ecutive. 487.  Due  process  of  law  explained.  488.  The  inhibition  applies  only 
to  the  United  States  Government.  488. 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law.  Art.  XI V,  sec.  1,  p.  482.  This  right  is  not  one  growing  out  of 
citizenship  of  the  United  States.  505. 

Duties.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  excises, 
&c.  But  all  should  be  uniform  throughout  the  United  States.  Art.  I,  sec.  8,  cl.  1, 
p.  365. 

Nor  shall  vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties  in  another.  Art.  I,  sec.  9,  cl.  6,  p.  392. 

Duty.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  Art.  1,  sec.  9, 
cl.  5,  p.  392. 


E. 


Effect.  The  Congress  may  provide  the  mode  of  proof  and  effect  of  judicial  proceed- 
ings, &c.  447. 

Elected.  When  the  President  is  elected,  criticised.  413. 

Elections.  Of  Senators,  and  classification  of.  Art.  I,  sec.  3,  cl.  1,  2,  n.  314. 

To  fill  vacancies,  309. 

No  case  has  gone  back  to  the  qualifications  of  the  legislators  who  chose  the 
Senators.  336,  p.  341.  No  magistracy  to  determine  the  qualifications  of  elect- 
ors. 338,  p.  342.  Determined  by  the  plurality  of  votes.  341. 

Electors.  For  Representatives,  qualifications  of.  Art.  I,  sec.  2,  cl.  1,  p.  303. 

No  Senator  or  Representative,  or  person  holding  an  office  of  trustor  profit 
under  the  United  States,  shall  be  appointed  an  elector.  Art.  II,  sec.  1,  cl.  2,p. 
400.  Number  of,  in  1876.  n.  409 a. 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may  di- 
rect, a number  of  electors  equal  to  the  whole  number  of  Senators  and  Repre- 
sentatives to  which  the  State  may  be  entitled  in  the  Congress.  Art.  II,  sec.  1, 
cl.  2,  p.  400. 

Shall  meet  and  vote  by  ballot.  Art.  XII,  p.  401. 

• When  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  &c.  Art.  XIV,  sec.  2,  p.  488. 


622 


INDEX 


Emancipation.  Neither  the  United  States,  nor  any  State,  shall  pay  any  claim  for  the 
loss  or  emancipation  of  any  slave;  but  all  such  debts,  obligations,  and  claims 
shall  be  held  illegal  and  void.  Art.  XIV,  sec.  4,  p.  496. 

Emoluments.  No  person,  &c.,  shall  accept  any  present,  emolument,  &c.,  from  any  for- 
eign  power.  Art.  I,  see.  9,  cl.  8,  p.  393. 

Enemies.  Treason  shall  consist  in  levying  war  against  the  United  States,  or  in  adher- 
ing to  their  enemies,  giving  them  aid  and  comfort.  Art.  Ill,  sec.  3,  cl.  1,  p.  443. 

Or  give  aid  or  comfort  to  the  enemies  thereof.  Art.  XIV,  see.  3,  p.  494.  This 
sentence  criticised  and  explained.  511. 

End.  By  granting  commissions  which  shall  expire  at  the  end  of  their  next  session. 
Art.  II,  sec.  2,  cl.  3,  p.  417. 

Engagements.  All  entered  into  before  the  adoption  of  this  Constitution  shall  be  valid 
against  the  United  States.  Art.  IV,  cl.  1,  p.  459. 

Enumeration.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion  to  the 
censusor  enumeration  hereinbeforedirected  to  be  taken.  Art.  I,  sec.  9,  cl.  4,  p.392L 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be  construed 
to  disparage  others  retained  by  the  people.  Art.  IX,  p.  477.  Made  every  ten 
years,  and  critical  principle  of.  308. 

Establishment.  Congress  shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof.  Art.  I,  p.  466. 

Excises.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, &c.  Art.  I,  see.  8,  cl.  1,  p.  365.  But  all  should  be  uniform  throughout  the 
United  States.  Id. 

Execution.  For  carrying  into  execution  the  foregoing  powers.  Art.  I, sec.  8,  cl.  18,  p.367. 

Executive.  On  application  of  the  executives,  when  the  Legislature  cannot  be  con- 
vened, the  United  States  shall  protect  the  States  against  domestic  violence.  Art. 
IV,  sec.  4,  p.  458. 

When  the  right  to  vote  for  executive  and  judicial  officers  of  a state,  or  the 
members  of  the  Legislature  thereof,  is  denied,  &c.,  there  shall  be  a correspond- 
ing reduction  in  the  ratio  of  representation.  Art.  XIV,  see.  2,  p.  488. 

Executive  Officers.  Cannot  be  controlled  by  the  judiciary.  435. 

Executive  Powetr.  Shall  be  vested  in  the  President  and  Vice  President  of  the  United 
States  of  America.  Art.  II,  sec,  1,  cl.  1,  p.  398. 

The  right  of  the  President  to  judge  of  the  Constitution  for  himself.  408.  Views 
of  Jefferson,  Jackson,  and  Van  Buren  upon  the  subject.  Id.  The  power  of  ap- 
pointment and  removal  is  not  executive.  Id. 

Exemptions.  After  judgment  the  State  cannot  exempt  the  homestead.  400.  Nor  can 
the  State  repeal  an  exemption  in  favor  of  a charitable  corporation.  401. 

Exercise.  Or  prohibiting  the  free  exercise  of  religion.  Art.  1, 466.  The  full  extent 
of  the  right  explained.  481. 

Expatriation.  Citizens  may  expatriate  themselves,  and  how.  369. . 

Ex  Post  .Facto  Law.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.  Art.  I,  sec. 
9,  cl.  3,  p.  390.  The  term  defined.  398.  Distinguished  from  retroactive  law.  398. 
More  clearly  defined.  398,  p.  392.  What  is  not.  Id. 

No  State  shall  pass  any.  Art.  1,  sec.  10,  cl.  1,  p.  393. 

Expulsion.  The  case  of  Whittemore.  353. 

Extradition.  Reciprocity  treaties  concerning  naturalization  and  extradition.  369. 

Treaties  concerning.  369. 

Extra  Sessions.  The  President  may,  on  extraordinary  occasions,  convene  both  Houses, 
or  either  of  them;  with  respect  to  the  time  of  adjournment  he  may  adjourn 
them  to  such  time  as  he  may  think  proper.  Art.  II,  sec.  3,  p.  420. 


F. 


Fact.  And  no  fact  tried  by  a jury  shall  be  otherwise  re  examined  in  any  other  court 
of  the  United  States  than  according  to  the  rules  of  the  common  law.  Art.  VII, 
p.  493.  This  amendment  applies  only  to  the  Federal  courts.  493. 

Faith.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  Art.  IV,  sec.  1,  p.  447. 

Federal  District.  The  District  of  Columbia  is  a corporation  liable  for  the  acts  of  its 
officers.  385. 

Federal  Question.  How  it  must  be  disclosed.  455.  Defined.  460.  If  a State  court 
refuse  to  give  credit  to  a judgment  it  raises  the  Federal  question.  464. 

Felonies.  Treason,  and  breach  of  the  peace,  not  among  the  privileges  from  arrest.  Art. 
I,  sec.  6,  cl.  1,  p.  361. 

Congress  has  the  right  to  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas.  Art.  I,  sec.  8,  cl.  10,  p.  366. 


INDEX 


623 


Felonies — Continued. 

A person  charged  in  any  State  with  treason,  felony,  or  other  crime,  &c.,  shall 
be  delivered  up.  Art.  4,  sec.  2,  cl.  2,  p.  453. 

Fines.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed.  Art.  VIII, 
p.  476. 

Forces.  Congress  has  power  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces.  Art.  I,  sec.  8,  cl.  14,  p.  366.' 

Foreign  Coin.  Congress  has  the  power  to  regulate  the  value  of.  Art.  I,  sec.  8,  cl.  5,  p. 
365. 

By  what  acts  made  legal  tender.  370. 

Foreign  Judgments.  Are  not  affected  by  Art.  IV,  sec.  1,  of  the  Constitution.  467. 

Foreign  Nations.  Congress  has  the  right  to  regulate  commerce  with.  Art.  I,  sec.  8,  cl. 
3,  p.  365. 

Foreign  State.  No  person  holding  office  shall  accept  any  present,  &c.,  from  any.  Art. 
I,  sec.  0,  cl.  8,  p.  393. 

And  between  a State  and  the  citizens  thereof,  and  foreign  states,  citizens,  or 
subjects.  Art.  Til,  sec.  2,  cl.  1,  p.  429. 

Forfeiture.  No  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture,  ex- 
cept during  the  life  of  the  person  attainted.  Art.  Ill,  sec.  3,  cl.  2.  p.  443.  Under 
the  confiscation  act  of  1862,  and  the  explanatory  joint  resolution  of  the  same 
date,  only  the  life  estate  of  the  person  upon  whose  offense  the  land  had  been 
condemned,  passed.  461.  The  whole  subject  reviewed.  Id.,  pp.  443-446.  If  the 
estate  in  fee  was  condemned,  only  the  life  estate  passed,  and  the  life  estate  hav- 
ing passed,  nothing  remained  in  the  offender.  461. 

Forts.  Exclusive  legislation  over.  Art.  T,  sec.  8,  cl.  17,  p.  366. 

Purchased  with  the  consent  of  the  States,  how  far  within  the  jurisdiction  of 
the  United  States.  386.  The  ordinary  laws  of  the  State  do  not  prevail.  Id. 

Fraud.  By  inspectors,  must  be  purposely  committed.  341. 

Must  be  substantiated  before  there  can  be  a recount  of  votes.  342,  p.  347. 

Inter-State  judgments  may  be  attacked  collaterally  on  the  ground  of  fraud. 
466,  467. 

Freedom.  Congress  shall  make  no  law  abridging  the  freedom  of  speech  or  of  the 
press.  Art.  I,  p.  466. 

G. 

General  Powers  of  Congress.  The  eighteen  enumerated  powers  are  to  be  construed 
by  the  tenth  amendment.  387.  Necessary  and  proper,  defined.  387.  Congress 
must  have  the  choice  of  means.  Id.  If  the  end  be  legitimate,  the  power  may 
be  inferred.  Id.  Every  doubt  is  to  be  resolved  in  favor  of  the  power.  Id. 

General  Welfare.  How  promoted.  296. 

Georgia.  Nullification  resolutions.  289. 

Government.  Congress  has  power  to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces.  Art.  I,  sec.  8,  cl.  14,  p.  366. 

And  all  other  powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  &c.  Art.  I,  sec.  8,  cl.  18,  p.  367. 

And  to  petition  the  Government  for  a redress  of  grievances.  Art.  I,  p.  466. 
This  is  an  attribute  of  national  citizenship  guaranteed  by  the  United  States.  481, 
p.  469. 

Theory  of,  as  to  election  of  magistrates.  336.  Fraud  in  naturalization  may  be 
reached  by  contested  election.  337.  Gross  frauds  will  not  be  overlooked.  338. 
Where  there  is  no  suspicion  of.  341. 

The  powers  of  the  people  confer  on  this  Government  were  to  be  exercised  by  it- 
self. 490.  And  the  President  has  no  power  over  life,  liberty,  or  property.  Id. 

Grand  Jury.  No  person  shall  be  held  to  answer  for  a capital  or  otherwise  infamous 
crime,  unless  on  a presentment  or  indictment  of  a grand  jury.  Art.  V,  p.  470. 
The  indictment  is  good  without  declaring  the  jurors  are  a grand  jury.  485. 

Grievances.  And  petition  the  Government  for  redress  of  grievances.  Art.  I,  p.  466. 
This  is  an  attribute  of  national  citizenship  guaranteed  by  the  United  States. 
481,  p.  469. 

Guadaloupe  Hidalgo.  Treaty  of,  upon  citizenship.  298. 

H. 


Habeas  Corpus.  The  privilege  of  the  writ  shall  not  be  suspended.  Art.  I,  sec.  9,  cl.  2, 
p.  386.  The  States  cannot  release  people  of  the  army  under.  389.  As  limited  by 
the  act  of  1789.  389.  Appeals  to  the  Supreme  Court,  in  cases  of.  Id.  The  right 


624 


INDEX. 


Habeas  Corpus — Continued. 

of  the  Supreme  Court  of  the  United  States  to  issue.  389.  Habeas  corpus  defined 
390.  Action  upon  the  return  to  the  writ.  391.  In  cases  of  contempt.  392.  The 
power  to  suspend  rests  alone  with  Congress.  393.  But  President  Lincoln  thought 
not.  Id.  Proceedings  in  cases  of,  not  governed  by  the  laws  of  the  States.  394. 
If  there  be  collision  between  the  Federal  and  State  jurisdictions,  the  Federal 
courts  control.  395.  When  no  appeal  lies.  396. 

Hampton  Hoads  Conference.  Its  history  as  to  the  XHIth  amendment.  498. 

Happen.  Defined  in  Gholson  and  Prentice’s  case.  309.  How  it  may  occur.  426. 

Heads  of  Departments  Congress  may  by  law  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

To  give  opinions  as  to  their  own  duties  and  the  President’s.  416.  History  of 
the  Cabinet.  416.  Practice  under  the  early  Presidents.  416. 

High  Crimes  and  Misdemeanors.  Some  conclusions  drawn  from  Johnson’s  trial.  327. 

Defined.  433. 

High  Seas.  Congress  has  the  right  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas.  Art.  I,  sec.  8,  cl.  10,  p.  366. 

History.  Of  the  Federal  Constitution.  290. 

Hour.  For  opening  and  closing  the  election  is  but  directory.  341. 

House.  Each  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own 
members.  Art.  I,  sec.  5,  cl.  1,  p.  337.  The  mode  of  contesting  elections.  334. 
Contests  in  the  Senate — Caldwell’s  case.  335.  The  theory  of  the  Government. 
336.  Contests  in  the  House— frauds  with  regard  to  naturalization.  337.  Some 
general  rules.  338.  Gross  frauds.  Id.  What  the  notice  of  contest  shall  specity. 
339.  Mere  irregularities  by  the  officers.  340.  The  subject  further  considered. 
341.  Exclusive  right  to  judge.  312.  The  returns.  343.  Power  to  recall  the 
certificate  of  election.  344.  Qualification  of  members.  345.  Disability  to  take 
the  test  oath.  346.  The  effect  of  voting  for  one  who  could  not  take  it.  Id.  In- 
timidation. 347.  The  burden  of  proof  iles  upon  those  who  deny  qualification.  348. 

Each,  shall  keep  a journal  of  its  proceedings,  &c.  Art.  I,  sec.  5.  cl.  3,  p.  361. 

Neither,  without  the  consent  of  the  other,  shall  adjourn,  &c.  Id.,  cl.  4. 

Each,  may  determine  the  rules  of  its  proceedings,  punish  its  members  for  dis- 
order^ behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a member. 
Art.  II,  sec.  5,  cl.  2,  p.  353. 

No  soldier  shall  in  time  of  peace  be  quartered  in  any  house  without  the  con- 
sent of  the  owner,  nor  in  time  of  war,  but  in  a manner  to  be  described  by  law. 
Art.  III.  p.  470. 

House  of  Representatives.  And  Senate  compose  the  Congress.  Art.  I,  sec.  1,  p.  303. 
Each  member  is  chosen  every  second  year  by  the  people  of  the  several  States  ; 
qualification  of  electors.  Art.  I,  sec. 2,  cl.l,  p.  303,  note  398.  Observe  the  same  rules 
in  regard  to  concurrent  resolutions  and  orders  as  in  regard  to  bills.  Art.  I,  sec. 
7,  cl.  3,  p.  363. 

Houses.  During  the  session  of  the  respective,  and  going  to  and  returning  from,  mem- 
bers shall  be  privileged  from  arrest,  except  for  treason,  &c.  Art.  I,  sec.  6,  cl.  1, 
p.  361.  And  for  any  speech  or  debate  in  either  House  they  shall  not  be  ques- 
tioned in  any  other  place.  Id. 

Houses,  Papers,  and  Effects.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and  seizures  shall  not 
be  violated.  Art.  IV,  p.  470. 


I. 

• 

Illegal  Votes.  Notice  should  specify.  338. 

Impeachment.  House  has  the  sole  power  of  impeachment.  Art.  I,  sec.  2,  cl.  5,  p.  311. 

The  Senate  has  sole  power  to  try  all  impeachments.  Art.  I,  sec.  3,  cl.  6,  p.  319. 
Some  doctrines  in  regard  to.  319-325.  History  of.  319.  No  challenges  upon 
trial  of.  320.  What  the  articles  must  contain.  321.  Of  Andrew  Johnson.  Id. 
How  Johnson  was  impeached.  321.  The  Senators  to  be  under  oath.  322.  When 
the  President  is  tried  the  Chief  Justice  shall  preside.  323.  How  the  court  is 
addressed  when  sitting  for.  323. 

Judgment  in  cases  of,  shall  only  extend  to  removal  from  office,  and  disqualifi- 
cation for.  Art.  I,  p.  329,  cl.  7,  n.  328. 

The  President  cannot  pardon  those  impeached.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. Art.  2,  sec.  4,  p.  423. 

The  high  crimes  and  misdemeanors  which  will  support  it.  433,  434. 


INDEX 


625 


Importation  and  Migration.  As  any  of  the  States  now  existing  shall  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  1808.  Art.  I,  sec.  9,  cl.  1,  p.  386. 

Imposts.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, &c.  Art.  I,  sec.  8,  cl.  1,  p.  365.  But  all  should  be  uniform  throughout  the 
United  States.  Id. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts  or  duties 
on  imports  or  exports,  except  what  may  be  absolutely  necessary  for  the  execu- 
tion of  its  inspection  laws,  and  the  net  produce  of  ali  such  shall  be  for  the  use 
of  the  United  States;  and  all  such  laws  shall  be  subject  to  the  revision  and  con- 
trol of  the  Congress.  Art.  I,  sec.  10,  cl.  2,  p.  395.  Imposts  and  imports  defined. 
403.  Further  considered.  404. 

Inability.  In  case  of  the  inability  of  the  President  to  discharge  the  duties  o-f  his  office, 
who  shall  serve.  Art.  II,  sec.  1,  cl.  5,  p.  404. 

Indians.  In  their  tribal  relations  not  voters.  298.  Excluding  Indians  not  taxed.  Art. 
XIV,  sec.  2,  p.  488.  The  relations  of  Indians  to  the  United  States  considered. 
509. 

Indian  Territory.  The  title  to,  is  subject  to  the  will  of  the  United  States.  368. 

Indian  Tribes.  The  power  of  Congress  over  them.  368. 

Their  countries  are  territories  of  the  United  States,  subject  to  the  will  of  Con- 
gress. Id. 

To  regulate  commerce  with  the  Indian  tribes.  Art.  1,  sec.  8,  cl.  3,  p.  365. 

Indictment.  No  person  shall  be  held  to  answer  for  a capital  or  otherwise  infamous 
crime,  unless  on  a presentment  or  indictment  of  a grand  jury.  Art.  V,  p.  470. 
The  indictment  is  good  without  declaring  the  jurors  are  a grand  jury.  485.  De- 
fined. 491. 

The  party  convicted  on  trial  for  impeaehment  shall  be  subject  to,  trial,  judg- 
ment, and  punishment  according  to  law.  Art.  I,  sec.  3,  cl.  7,  p.  330. 

Ineligibility.  No  person  constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice  President  of  the  United  States.  Art.  XII,  cl.  3,  p.  402. 

Votes  cast  for  a candidate  notoriously  ineligible  not  to  be  counted.  346. 

Inferior  Courts.  Congress  has  power  to  constitute  tribunals  inferior  to  the  Supreme 
Court.  Art.  1.  sec.  8,  cl.  6,  p.  366.  The  judges  both  of  the  Supreme  and  inferior 
courts  shall  hold  their  offices  during  good  behavior,  &c.  Art.  Ill,  sec.  1,  p.  427. 

And  in  such  inferior  courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  Art.  Ill,  sec.  1,  p.  427.  The  provisional  courts  were  inferior.  437. 

Information.  The  President  shall  from  time  to  time  give  to  the  Congress  information 
of  the  State  of  the  Union.  Art.  II.  sec.  3,  p.  420. 

Inhabitant.  Requirements  to  be  a Representative.  301. 

For  Senatorship  defined.  315. 

Inhibitions.  The  absolute,  upon  the  States.  Art.  I,  sec.  10,  cl.  1,  p.  393.  Those  which 
require  the  consent  of  Congress.  Id.,  els.  2 and  3. 

Insurgent  States.  Property  in,  divided  into  four  classes.  378. 

Insurrections.  Congress  has  power  to  provide  for  calling  forth  the  militia  to  suppress. 
Art.  I,  sec.  8,  cl.  15,  p.  366. 

Shall  have  engaged  in  insurrection  or  rebellion  against  the  United  States,  or 
given  aid  or  comfort  to  the  enemies  thereof.  Art.  XIV,  sec.  3,  p.  494. 

Pensions  and  bounties  for  services  in  suppressing  insurrection  or  rebellion 
shall  not  be  questioned.  Art.  XIV,  sec.  4,  p.  496.  No  debt  for  insurrection  or 
rebellion  shall  be  paid  by  the  United  States  or  any  State.  Id. 

Inspection  Laws.  Passed  by  the  States,  are  necessary  for  the  regulation  of  commerce. 
367. 

Instrumentalities.  Of  Government,  cannot  be  taxed.  404. 

Intercourse.  Power  to  regulate  commerce,  includes  every  kind  of.  367. 

Interest.  Public  debt  bearing  interest.  360. 

Intimidation.  The  effect  of,  upon  elections.  347. 

Invasion.  Congress  has  power  to  provide  for  calling  forth  the  militia  to  repel.  Art. 
I,  sec.  8,  cl.  15,  p.  366. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when 
in  cases  of  invasion  or  rebellion  the  public  safety  may  require  it.  Art.  I,  sec.  9, 
cl.  2,  p.  386.  The  power  to  suspend  lies  alone  with  Congress.  393. 

The  United  States  shall  protect  each  State  against  invasion.  Art.  IV,  sec.  4,  p. 
458. 

Inventors.  Congress  may  secure  to  them,  for  a limited  time,  exclusive  right  to  their 
discoveries.  Art.  I,  sec.  8,  cl.  8,  p.  365. 

The  protection  to,  to  authors,  and  their  inventions  and  books  exempt  from 
forced  sale.  373. 

Irregularities.  Mere,  will  not  vitiate  if  there  be  no  suspicion  of  unfairness.  340,341. 

A mere  failure  to  return  votes,  unless  they  would  change  the  result,  is  not  fatal. 
Id. 


626 


INDEX 


J. 

Jeopardy.  Nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb.  Art.  V,  p.  470.  Jeopardy  defined.  48G.  No  one  can  be 
twice  lawfully  punished  for  the  same  offense  within  the  same  jurisdiction.  Id. 
At  common  law  there  could  not  be  two  trials.  Id.  Magna  charta.  Id.  But  the 
indictment  must  be  good.  Id. 

Johnson’s  Acquittal.  Deductions  from.  327. 

Judges.  Each  House  shall  be  the  judge  of  the  elections,  qualifications,  and  returns 
of  its  own  members.  Art.  I,  sec.  5,  cl.  1,  p.  337.  The  law  providing  for  contests. 
334.  Regardless  of  the  elections  of  previous  Houses  or  of  State  officers.  342. 

The  President  shall  appoint  the  judges  of  the  Supreme  Court  and  all  other 
officers  of  the  United  States  whose  appointments  are  not  otherwise  provided  for 
by  law.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

The  judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior,  and  shall  at  stated  times  receive  for  their  services  a com- 
pensation which  shall  not  be  diminished  during  their  continuance  in  office. 
Art.  Ill,  sec.  1,  p.  427.  Of  the  Territories  appointed  by  the  President.  473,  p.  457. 

In  every  State  shall  be  bound  by  the  constitutional  laws  and  treaties  of  the 
United  states,  anything  in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.  Art.  VI,  cl.  2,  p.  460. 

Judgment.  In  impeachments  never  given  by  the  house  of  peers  until  demanded  by  the 
house  of  commons.  N.  228,  p.  231.  In  cases  of  impeachment.  326.  Vote  upon 
President  Johnson’s  trial.  326.  The  conclusion  from  the  vote.  327.  Constitu- 
tion, as  to.  Art.  I,  sec.  3,  cl.  7,  p.  330,  n.  328. 

Notice,  actual  or  constructive,  is  necessary  to  give  jurisdiction  to  the  court. 
462-467.  And  if  the  proceeding  be  in  rem  the  res  must  be  within  the  jurisdiction 
of  the  court.  Id. 

Judicial  Power.  Of  the  United  States  shall  be  vested  in  one  Supreme  Court  and  such 
inferior  courts  as  Congress  shall  from  time  to  time  establish.  Art.  Ill,  sec.  1,  p. 
427.  It  is  the  power  to  hear  and  determine.  435.  The  subject  criticised.  Id. 

Extends  to  what  subjects.  Art.  Ill,  sec.  2,  cl.  1,  p.  429.  The  general  principle. 
439.  Power  of  Congress  over  the  subject.  Id.  Cannot  control  the  other  depart- 
ments of  the  Government.  440. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State,  Art. 
XI,  p.  478. 

Judicial  Proceedings.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  State.  And  the  Congress  may 
by  general  laws  prescribe  the  manner  in  which  such  acts,  records,  and  judicial 
proceedings  shall  be  proved,  and  the  effect  thereof.  Art.  IV,  sec.  l,p.  447.  Notice, 
actual  or  constructive,  is  necessary  to  a judgment.  462.  And  where  there  is 
notice,  faith  is  given  to  judgments  for  divorce.  463.  If  the  court  refuse  to  re- 
spect the  judgment,  it  becomes  a Federal  question.  464.  The  general  principle 
reviewed.  465.  The  judgment  by  attachment  is  valid  as  to  property  sold  only.  Id. 
But  there  must  be  jurisdiction  over  the  subject-matter  of  the  suit/  466.  The  right 
to  go  behind  the  judgment  for  fraud  or  want  of  jurisdiction  fully  considered.  467. 

Judiciary  The  judges  have  the  right  to  decide  what  laws  are  constitutional.  419. 

Jurisdiction.  What  courts  have,  against  postmasters.  372.  Defined  and  explained. 
435.  Original  and  appellate.  Art.  Ill,  sec.  2,  cl.  2,  p.  439.  The  Supreme  Court 
has  original  jurisdiction  only  in  the  two  classes  of  cases  mentioned  in  this  clause. 

457.  Where  the  jurisdiction  is  exclusively  appellate,  the  revisory  power  is  to  be 
exercised  not  over  its  own  judgment,  but  over  those  of  an  inferior  jurisdiction. 

458.  Congress  has  regulated  the  appellate  jurisdiction.  459.  The  law  of  1867 
superseded  the  judiciary  act  as  to  appeals  from  the  highest  State  courts.  460. 
For  the  division  of  jurisdiction  among  the  different  courts.  456.  To  be  removed 
to  the  State  having  jurisdiction  of  the  crime.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

No  new  State  shall  be  formed  .or  erected  within  the  jurisdiction  of  any  other 
State.  Art.  IV,  sec.  3,  cl.  1,  p.  454. 

The  Federal,  between  citizens  of  different  States  fully  explained.  450-455.  The 
States  cannot  impair  that  of  the  Federal  courts.  451. 

Notice  actual  or  constructive  is  necessary  to  give  jurisdiction  to  the  court. 
462-467.  And  if  the  proceeding  be  in  rem , the  res  must  be  within  the  jurisdiction 
of  the  court,  Id. 

Neither  slavery  nor  involuntary  servitude,  &c.,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  Art.  XIII,  sec.  1,  p.  478.  When 
this  amendment  took  effect.  498,  499.  How  it  affected  contracts.  Id. 


INDEX. 


627 


J urisdiction — Continued. 

No  State  shall  deny  to  any  person  within,  its  jurisdiction  the  equal  protection 
of  the  laws.  Art.  XIV,  see.  1,  p.  482.  Those  clauses  apply  with  peculiar  force  to 
the  emancipated  race.  504.  The  slaughter  house  cases  criticised.  505. 

Jurors.  Qualification  for  jurors  in  Territories  prescribed  by  their  laws.  474. 

Jury.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a speedy  and 
public  trial  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed.  Art.  VI,  p.  474. 

Where  the  value  in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  ajury  shall  be  preserved.  And  no  fact  tried  byajury  shall  be  otherwise  reexam- 
ined in  any  court  of  the  United  States  than  according  to  the  rules  of  the  common 
law.  Art.  VII,  p.476.  This  amendment  applies  only  to  the  Federal  courts.  493. 

Justice.  To  establish.  P.  300.  How  accomplished.  293.  The  person  charged  in  any 
State  with  treason,  felony,  or  other  crime,  &c.,  who  shall  flee  from  justice  shall 
be  delivered  up.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

K. 

King.  No  person  holding  office  shall  accept  any  present,  &c.,from  any.  Art.  I,  sec.  9, 
cl.  8,  p.  393. 

L. 

Labor.  No  person  held  to  service  or  labor  in  one  State,  escaping  into  another,  shall 
be  discharged  from  such  service  or  labor.  Art.  IV,  sec.  2,  cl.  3,  p.  453. 

Land.  Congress  has  power  to  make  rules  concerning  captures  on  land  and  water.  Art. 

1,  sec.  8,  cl.  11,  p.  366.  Captures  upon,  defined.  383.  Must  be  according  to  laws 
of  war.  Id. 

Land  and  Naval  Forces.  Trial  by  jury  shall  be  had,  except  in  cases  arising  in  the  land 
and  naval  forces,  or  in  the  militia,  when  in  time  of  war  or  public  danger.  Art. 
V,  p.  470.  Rule  for,  should  not  control  the  appointing  power.  381. 

Lands.  Between  citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States.  Art.  Ill,  sec.  2,  cl.  1,  p.  429. 

Law.  Congress  to  meet  every  year,  on  first  Monday  in  December,  unless  by  law  a 
different  day  be  appointed.  Art.  I,  sec.  4,  cl.  2,  p.  334. 

Those  who  have  been  impeached  may  yet  be  subject  to  indictment,  &c.,  accord- 
ing to  law.  Art.  I,  sec.  4,  cl.  7,  p.  330. 

Law  or  Equity.  The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State  or  by  citizens  or  subjects  of  any  foreign 
State.  Art.  XI,  p.  478. 

Laws.  Congress  has  power  to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  all  the  power  vested  by  this  Constitution  in  the  Gov- 
ernment of  the  United  States  or  in  any  department  or  officer  thereof.  Art.  I, 
sec.  8,  cl.  18,  p.  367. 

The  President  shall  take  care  that  the  laws  be  faithfully  executed.  Art.  II, 
sec.  3,  p.  420. 

The  judicial  power  shall  extend  to  all  cases  in  law  and  equity.  Art.  Ill,  sec. 

2,  cl.  1,  p.  429.  How  cases  at  common  law  are  to  be  understood.  443. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the  con- 
sent of  the  owner,  nor  in  time  of  war,  but  in  a manner  to  be  prescribed  by  law. 
Art.  Ill,  p.  470. 

No  person  held  to  service  or  labor  in  one  State  under  the  laws  thereof,  escap- 
ing into  another,  shall,  in  consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor.  Art.  IV,  sec  2,  cl.  3,  p.  453. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  &c.,  shall  be  the  supreme  law  of  the  land.  Art.  VI,  cl.  2,  p. 
460.  The  courts  must  determine  whether  the  Constitution  is  consistent  with  the 
law.  478,  p.  462. 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  and 
immunities  of  the  citizens  of  the  United  States,  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws.  Art.  XIV,  sec.  1, 
p 482.  The  clauses  variously  considered.  500-505.  The  President’s  duty  to  see 
that  the  laws  are  faithfully  executed.  428.  Take  care,  defined.  429.  This  does 
not  carry  the  power  to  remove  from  office.  Id. 

The  people  are  secured  not  by  laws  paramount  to  prerogative,  but  by  constitu- 
tions paramount  to  the  laws.  482. 


628 


INDEX. 


Laws  of  Nations.  Congress  has  power  to  define  and  punish  offenses  against  the  laws 
of  nations.  Art.  1,  sec.  8,  cl.  10,  p.  366.  Must  be  recognized  in  war.  378. 

Laws  of  the  Union.  Congress  has  power  to  provide  for  calling  forth  the  militia  to  exe- 
cute the  laws  of  the  Union.  Art.  I,  sec.  8,  cl.  15,  p.  366. 

Legal  Tender.  The  legal-tenderTreasury-note  law  is  constitutional.  361.  Contracts  for 
coin  not  payable  in  Treasury  notes.  370.  Treasury  notes,  when  contracts  are 
not  otherwise  expressed,  are  legal  tenders.  370. 

Legislation  . Congress  shall  have  power  to  enforce  this  article  (13, 14, 15)  by  appropriate 
legislation.  Arts.  XIII,  XIV,  XV,  pp.  478,  495,  496.  To  secure  the  rights  it  may 
enact  penal  laws,  but  not  interfere  with  the  ordinary  jurisdiction  of  the  States. 
496. 

Legislative  Powers.  Vested  in  Congress.  Art.  I,  sec.  1,  p.  303. 

Legislature.  Qualifications  of  electors  for  the  most  numerous  branch.  Art.  I,  sec.  2,  cl.  1, 
p.  303.  The  times,  places,  and  manner  of  holding  elections  to  be  prescribed  by 
the  Legislature  of  each  State.  Art.  I,  sec.  4,  cl.  1,  p.  331.  With  what  protest  this 
was  accepted.  330.  What  is  meant  by  legislature.  Id.  As  to  action  by  conven- 
tions. Id.  Military  authority.  Id. 

Purchased  by  the  consent  of  the  Legislature  for  the  erection  of  forts,  &c.  Art. 

I,  sec.  8,  cl.  17,  p.  366. 

No  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other 
State,  nor  by  the  junction  of  two  or  more  States,  without  the  consent  of  the  leg- 
islatures of  the  States  concerned,  as  well  as  of  Congress.  Art.  IV,  sec.  3,  cl.  1,  p 
454. 

Senators  appointed  to  serve  until  the  next  meeting  of,  defined.  314. 

On  the  application  of  the  legislature  the  United  States  shall  protect  each  State 
against  domestic  violence.  Art  TV,  sec.  4,  p.  454.  When  the  legislature  is  in  ses- 
sion the  call  should  come  from  them.  Art.  IV,  sec.  4,  p.  458. 

The  members  of  the  various  legislatures  to  take  the  constitutional  oath.  Art. 
VI,  cl.  3,  p.  464. 

Letters.  Congress  has  power  to  grant  letters  of  marque  and  reprisal.  Art.  I,  sec.  8,  cl. 

I I,  p.  366.  No  State  shall  grant.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Liberty.  Blessings  of,  to  ourselves  and  posterity.  P.  301.  The  great  case  in  favor  of 
popular.  352. 

No  person  shall  be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law.  Art.  V,  p.  470.  This  means  judicial  process,  not  executive.  487.  Due  pro- 
cess of  law  explained.  488.  Inhibition  only  to  the  United  States  Government.  Id. 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law.  Art.  XIV,  sec.  1,  p.  482.  This  right  is  not  one  growing  out 
of  citizenship  of  the  United  States.  505. 

Unrestrained  speech  is  as  fatal  to  liberty  as  despotism.  482. 

Liens.  The  State  laws  giving  liens  to  material  men  cannot  be  enforced  in  admiralty. 
446. 

Life.  No  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  attainted.  Art.  Ill,  sec.  3,  cl.  2,  p.  443.  Under  the 
confiscation  act  of  1862,  and  the  explanatory  joint  resolution  of  the  same  date, 
only  the  life  estate  of  the  person  upon  whose  offense  the  land  had  been  con- 
demned passed.  461.  The  whole  subject  reviewed.  Id.,  pp.  443-446.  If  the  es- 
tate in  fee  was  condemned,  only  the  life  estate  passed,  and  the  life  estate  having 
passed,  nothing  remained  in  the  offender.  461. 

No  person  shall  be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law.  Art.  V,  p.  470.  This  means  judicial  process,  not  executive.  487.  Due  pro- 
cess of  law  explained.  488.  Inhibition  applies  only  to  the  United  States  Gov- 
ernment. Id. 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law.  Ait.  XiV,sec.  1,  p.482.  This  right  is  notone  growing  out  of  citi- 
zenship of  the  United  States.  505. 

Life  or  Limb.  Nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb.  Art.  V,  p.  470. 

Limitation.  The  statute  of,  belongs  to  the  remedy.  402. 

Liquor  The  State  import  tax  upon,  is  constitutional.  405. 

Local  Prejudice.  The  act  of  1867  considered.  453. 

. M. 

Magazines.  Exclusive  legislation  over.  Art.  I,  sec.  8,  cl.  17,  p.  366. 

Mails.  Laws  regulating  post  offices  and  post  roads.  372. 

Majority.  Of  each  House  shall  constitute  a quorum  to  do  business.  Art.  I,  sec.  5,  cl. 
1,  p.  337. 


INDEX 


629 


Manner.  Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof  may 
direct,  the  number  of  electors.  Art.  II,  sec.  1,  cl.  2,  p.  400. 

Marque.  Congress  has  power  to  grant  letters  of  marque  and  reprisal.  Art.  I,  sec.  8,  cl. 
11,  p.  366. 

Marque  and  Reprisal.  No  State  shall  grant  letters  of.  Art.  I,  sec.  10,  cl.  1,  p.  393. 
Measures.  Congress  has  the  power  to  fix  the  standard  of  weights  and  measures.  Art. 
I,  sec.  8,  cl.  5,  p.  365. 

The  President  shall  recommend  to  the  consideration  of  Congress  such  meas- 
ures as  he  shall  judge  necessary  and  expedient.  Art.  II,  sec.  3,  p.  420. 

Meeting.  Meeting  of  Congress  shall  be  on  the  first  Monday  in  December,  unless 
otherwise  enacted.  Art.  I,  sec.  4,  cl.  2,  p.  334.  List  of  meetings  or  sessions,  gen- 
eral and  special.  333. 

Members.  Of  the  House  of  Representatives,  chosen  every  second  year  by  the  people. 
Art.  I,  sec.  2,  cl.  1,  p.303. 

Absent,  may  be  compelled  to  attend  by  less  than  a majority.  Art.  I,  sec.  5,  cl. 

I,  p.  337. 

The  object  of  choice  every  second  year.  298. 

Mexicans.  Who  by  the  treaty  of  Guadaloupe-Hidalgo  have  failed  to  become  citi- 
zens. 298. 

Migration.  Or  importation  of  such  persons  as  any  of  the  States  now  existing  shall 
admit,  shall  not  be  prohibited  by  Congress  prior  to  the  year  1808.  Art.  I,  sec.  9, 

cl.'  1. 

Military  Government.  The  Constitution  provides  for.  377. 

Military  Power.  To  prescribe  the  times  and  places  of  holding  elections.  331. 
Militia.  Congress  has  power  to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrection,  and  repel  invasions.  Art.  I,  sec.  8,  cl. 
15,  p.  366. 

Congress  may  provide  for  organizing,  arming, and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States,  &c.  Art.  I,  sec.  8,  cl.  16,  p.  366. 

The  President  shall  be  commander-in-chief  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

A well-regulated  militia  being  necessary  to  the  security  of  a free  State,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed.  Art.  II,  p.  469. 

Except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  while  in 
time  of  war  or  public  danger.  Art.  V,  p.  470. 

Ministers.  The  President  shall  receive  ambassadors  and  other  public  ministers.  Art. 

II,  sec.  3,  p.  420. 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  the  Su- 
preme Court  shall  have  original  jurisdiction.  Art.  Ill,  sec.  2,  cl.  2,  p.  439. 
Misdemeanor.  Defined.  434. 

All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. Art.  II,  sec.  4,  p.  423. 

Money.  Congress  shall  have  power  to  borrow  money  on  the  credit  of  the  United  States. 
Art.  I,  sec.  8,  cl.  2,  p.  365.  Statement  of  the  debts.  360.  Treasury  notes  are  bills 
of  credit.  362. 

Congress  shall  have  power  to  coin  money,  to  regulate  the  value  thereof,  and  of 
foreign  coin.  Art.  I,  sec.  8,  cl.  5,  p.  365.  To  coin  defined.  370.  Coin,  foreign 
and  domestic.  Id.  The  various  coinage  acts.  Id.  The  material  for  coinage. 
371.  Money  defined.  Id. 

No  appropriation  of  money  for  the  use  of  armies  shall  be  for  a longer  term 
than  two  years.  Art.  I,  sec.  8,  cl.  12,  p.  366. 

No  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appropria- 
tion made  by  law,  and  a regular  statement  and  account  of  the  receipts  and  expend- 
itures of  all  public  money  shall  be  published  from  time  to  time.  Art.  I,  sec.  9,  cl. 
7,  p.  393. 

No  State  shall  coin.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Borrowed  on  the  credit  of  the  United  States.  361.  Treasury  notes  are,  and 
also  legal-tenders.  Id. 

Out  of  what  materials  made.  371. 

N. 

National  Government.  Powers  of.  288. 

Naturalization.  Congress  shall  have  power  to  establish  an  uniform  rule  of  naturaliza- 
tion. Art.  I,  sec.  8,  cl.  4,  p.  365.  Reciprocity  treaties  concerning.  369.  Interna- 
tional treaties  concerning.  Id, 


630 


INDEX. 


Naturalized.  Ail  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States,  and  of  the  State  wherein 
they  reside.  Art.  XIV,  sec.  1,  p.  482.  This  is  the  first  national  definition  of  citi- 
zenship. 500.  The  subject  fully  considered.  Id. 

Naval  Forces.  Except  in  cases  arising  in  the  land  and  naval  forces  or  in  the  militia 
when  in  time  of  war  or  actual  danger.  Art.  V,  p.  470. 

Navigation.  The  power  to  regulate  commerce  includes  every  kind  of.  367. 

Navy.  Congress  has  power  to  provide  and  maintain  a navy.  Art.  I,  sec.  8,  cl.  13,  p.  366. 

The  President  shall  be  Commander  in  Chief  of  the  Army  and  Navy  of  the 
United  States.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

Necessary  and  Proper  Power.  The  eighteenth  enumerated  power  is  to  be  construed 
by  the  tenth  amendment.  387.  Necessary  and  proper  defined.  Id.  Congress 
must  have  the  choice  of  means.  Id.  If  the  end  be  legitimate  the  power  may  be 
inferred.  Id.  Every  doubt  is  to  be  resolved  in  favor  of  the  power.  Id. 

Negotiable  Instruments.  How  far  the  subject  of  Federal  jurisdiction.  454. 

Negroes.  Amendments  13-15  had  peculiar  reference  to  the  negro  race.  497.  But  not 
to  the  exclusion  of  other  slavery.  Id. 

New  Mexico.  What  citizens  of,  failed  to  acquire  citizenship  in  the  United  States.  298. 
Indians  there  in  their  tribal  relations  not  voters.  298.  Its  history  as  a Territory 
of  Mexico.  306.  Not  allowed  a delagate  until  organized.  Id. 

New  States.  May  be  admitted  by  the  Congress  into  this  Union  under  enumerated 
conditions.  Art.  IV,  sec.  3.  cl.  1,  p.  454.  Certain  new  States  admitted.  470. 

Nobility.  No  title  of  nobility  shall  be  granted  by  the  United  States.  Art.  I,  sec.  9,  cl. 
8,  p.  393.  Nor  by  any  State.  Art  I,  sec.  10,  cl.  1,  p.  393. 

Notice.  Of  contests  to  be  specific.  339. 

That  the  party  received  a majority  without  further  specification  is  insufficient. 
342,  p.  347. 

Numbers.  Not  increased  by  emancipation.  308.  Can  only  be  enumerated  every  ten 
years.  Id.  The  States  must  all  be  represented  under  the  same  enumeration.  Id. 
A smaller,  may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members.  Art.  I,  sec.  5,  cl.  1.  p.  337. 

Of  electors  to  the  whole  number  of  Senators  and  Representatives  to  which  the 
States  may  be  entitled.  Art.  II,  sec.  1,  cl.  2,  p.  400.  According  to  their  respective 
numbers  counting  the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed ; but  if  the  right  to  vote  shall  be  denied  to  any  numbers,  the  appor- 
tionment shall  be  correspondingly  abridged.  Art.  XIV,  sec.  2,  p.  488,  note  509. 

o. 

Oath.  Or  affirmation  of  Senators  when  trying  impeachments.  P.  322. 

Of  the  Chief  Justice  on  trial  of  President.  322.  Same  oath  administered  to 
the  Senators.  Id. 

Of  election  officers.  340.  Omission  of,  alone  not  fatal.  Id. 

Resolution  concerning^  to  members.  346. 

Of  the  President.  Art.*  I,  sec.  1,  cl.  7,  p.  406.  Is  to  be  taken  in  connection  with 
the  duty  to  see  that  the  law  is  faithfully  executed.  414. 

Required  by  the  Constitution  of  the  United  States.  Art.  VI,  cl.  3,  p.  464.  Gen- 
eral and  modified.  480. 

No  warrant  shall  issue  but  upon  probable  cause  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized.  Art.  IV,  p.  470. 

No  person,  &c.,  who  having  previously  taken  an  oath,  &c.,  shall  have  engaged 
in  rebellion,  &c.  Art.  XIV,  sec.  3,  p.  493. 

Obligation  of  Contracts.  No  State  shall  pass  any  law  impairing.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

The  law  which  annuls  the  remedy  impairs.  400.  If  valid  in  inception  the  con- 
tract remains  so.  Id. 

Occasions.  The  President  may,  on  extraordinary  occasions,  convene  both  Houses,  or 
either  of  them ; with  respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper.  Art.  II,  sec.  3,  p.  420. 

Offense.  Nor  shall  any  person  be  subject,  for  the  same  offense,  to  be  twice  put  in 
jeopardy  of  life  or  limb.  Art.  V,  p.  470.  Jeopardy  defined.  486.  No  one  can  be 
twice  lawfully  punished  for  the  same  offense  within  the  same  jurisdiction.  Id. 

Offenses.  Congress  has  the  power  to  define  and  punish  offenses  against  the  law  of 
nations.  Art.  I,  sec.  8,  cl.  10,  p.  366. 

Committed  in  places  purchased  for  forts,  arsenals,  dock-yards,  &c.,  are  within 
the  exclusive  jurisdiction  of  the  United  States.  386. 

The  President  has  power  to  grant  reprieves  and  pardons  for  offenses  against 
the  United  States,  except  in  cases  of  impeachment.  Art.  II,  sec.  2,  cl.  1,  p.  407. 


INDEX 


631 


Office.  Removal  from,  and  disqualification  for  in  cases  of  impeachment.  P.  330,  cl.  7. 

No  Senator  or  Representative  who  has  helped  to  create  shall  fill,  and  no  per- 
son holding  any  office  shall  be  a member  of  either  House  during  his  continu- 
ance in.  Art.  I,  sec.  6,  cl.  2,  p.  362.  An  officer  in  the  army  comes  within  the 
same  inhibition,  n.  356. 

Vested  in  any  department  or  officer  thereof.  Art.  I,  sec.  8,  cl.  18,  p.  367. 

No  person  holding  any  office  of  profit  or  trust  under  the  United  States  shall, 
without  the  consent  of  the  Congress,  accept  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  State.  Art.  I,  sec. 
r 9,  cl.  8,  p.  393. 

No  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  U nited  States,  shall  be  appointed  an  elector.  A rt.  1 1,  sec.  1,  cl.  2,  p.  400. 

The  President  shall  hold  his  term  of  office  for  four  years.  Art.  II,  sec.  I,  cl.  1. 
p.  398. 

In  case  of  the  removal  of  the  President  from  office,  who  shall  serve.  Art.  II, 
sec.  1,  cl.  5,  p.  404. 

The  President’s  oath  to  execute.  Art.  II,  sec.  1,  cl.  7,  p.  406.  ♦ 

Various  opinions  upon  the  power  to  remove  from,  429.  Tenure  of  office  law  at 
present.  430. 

All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment. Art.  II,  sec.  4,  p.  423. 

No  person  shall  hold  any  office,  civil  or  military,  under  the  United  States,  or 
under  any  State,  who  having  previously  taken  an  oath,  &c.,  shall  have  engaged 
in  rebellion.  Art.  XIV,  sec.  3,  p.  493. 

Officer.  Congress  may  provide  what  officer  shall  act  as  Pi  esiden  t when  neither  Presi- 
dent nor  Vice  President  can  act.  Art.  II,  sec.  1,  cl.  5,  p.  404,  n.  412. 

Head  of  each  executive  department  may  be  required  to  give  his  opinion  in 
writing.  Art.  II,  sec.  2,  cl.  1,  p.  407,  n.  416. 

Officers.  Reserving  to  the  States  respectively  the  appointment  of  the  officers  of  the 
militia.  Art.  I,  sec.  8,  cl.  16,  p.  366.  The  right  to  commission  by  the  States,  a 
guaranty  in  favor  of  liberty.  382. 

Inferior,  may  be  appointed  by  the  President  alone,  by  the  courts  of  law,  or  by 
the  heads  of  departments.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

For  the  various  lists  of  appointments  since  the  foundation  of  the  Government. 
422.  Those  who  have  been  temporarily  appointed.  Id. 

The  President  shall  commission  all  officers  of  the  United  States.  Art.  2,  sec. 
3,  p.  420. 

All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment. Art.  II,  see.  4,  p.  423. 

Offices.  The  judges  shall  hold  their  offices  during  good  behavior,  and  their  compensa- 
tion shall  not  be  diminished  during  their  continuance  in  office.  Art.  Ill,  sec.  2, 
p.  427. 

Opinion.  The  President  may  require  the  opinion  in  writing  of  the  principal  officer  in 
each  of  the  executive  departments.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

Order.  Every  order,  resolution,  or  vote,  to  which  the,  concurrence  of  both  Houses 
may  be  necessary,  (except  on  a question  of  adjournment,)  shall  be  presented  to 
the  President  for  approval  or  disapproval,  and  can  be  passed  over  the  latter  by 
a two-third’s  vote,  in  the  same  manner  as  a bill.  Art.  I,  sec.  7,  cl.  2,  p.  363. 

Organization.  Of  the  various  Territories,  473. 

Overt  Act.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act  or  on  confession  in  open  court.  Art.  Ill,  sec.  3, 
cl.  1,  p.  443. 

Owner.  No  soldier  shall  in  time  of  peace  be  quartered  in  any  house  without  the  con- 
sent of  the  owner,  nor  in  time  of  war  but  in  a manner  to  be  prescribed  by  law. 
Art.  Ill,  p.  470. 

P. 

Practice.  In  cases  of  habeas  corpus  in  the  Supreme  Court  of  the  United  States.  389. 

Preamble.  Of  the  Constitution.  P.  300. 

Precedents.  Of  States,  how  far  binding  on  the  Supreme  Court  of  the  United  States. 
375. 

Preference.  No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue 
to  the  ports  of  one  State  over  those  of  another.  Art.  I,  sec.  9,  cl.  6,  p.  392. 

Presentment  or  Indictment.  No  person  shall  be  held  to  answer  for  a capital  or  other 
infamous  crime  unless  on  a presentment  or  indictment  of  a grand  jury.  Art. 
V,  p.  470.  The  indictment  is  good  without  declaring  the  jurors  are  a grand 
jury.  485. 

45 


632 


INDEX 


Presents.  No  person  shall  accept  any,  &c.,  from  a foreign  power.  Art.  I,  sec.  9,  el.  8, 
p.  393. 

President.  When  the  President  of  the  United  States  is  tried  the  chief  justice  shall 
preside.  Art.  I,  sec.  3,  cl.  6,  p.  323,  n.  323. 

How  the  chief  justice  presides  on  his  trial.  323. 

The  executive  power  shall  be  vested  in  the  President  and  Vice  President  of 
the  United  States  of  America.  He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice  President,  chosen  for  the  same  term,  be 
elected  as  follows.  Art.  II,  see.  1,  cl.  1,  p.  398. 

And  Vice  President,  how  chosen.  Art.  XII,  cl,  1,  pp.  401,  402. 

No  person  constitutionally  ineligible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice  President  of  the  United  States.  Art.  XII,  cl.  3,  p.  402. 

Must  have  been  fourteen  years  a resident  of  the  United  States  to  be  eligible  to 
the  presidency.  Art.  II,  sec.  1,  cl.  4,  p.  404. 

Cases  in  which  the  Vice  President  or  other  officer  may  serve  as  President. 
Art.  II,  sec.  1,  cl.  5,  p.  404. 

*Shall  at  stated  times  receive  for  his  services  a compensation  which  shall 
neither  be  increased  nor  diminished  during  the  period  for  which  he  shall  have 
been  elected.  Art.  II,  sec.  1,  cl.  6,  p.  405. 

His  oath  of  office.  Art.  II,  sec.  1,  cl.  7,  p.  406,  n.  414. 

Shall  be  commander  in  chief,  and  other  powers.  Art.  II,  sec.  2,  el.  1,  p.  407. 
History  of  the  commission  of  the  commander  in  chief.  415. 

Has  power  to  grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment.  Art.  II,  sec.  2,  cl.  I,  p.  407. 

Shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present  concur.  Art.  II,  sec.  2,  cl. 
2,  p.  412. 

All  the  duties  of  the  President  are  prescribed  by  the  Constitution  and  the 
law.  420. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  shall  happen  during 
the  recess  of  Congress  by  granting  commissions,  which  shall  expire  at  the  end 
of  the  next  session.  Art.  II,  sec.  2,  cl.  3,  p.  417. 

His  various  powers  and  duties  under.  Art.  II,  sec.  3,  p.  420. 

Shall  take  care  that  the  laws  be  faithfully  executed.  Art.  II,  sec.  3,  p.  420. 

Shall  from  time  to  time  give  to  the  Congress  information  of  the  state  of  the 
Union.  Art.  II,  sec.  3,  p.  420. 

The  President  and  Vice  President,  and  all  civil  officers  of  the  United  States, 
shall  be  removed  from  office  on  impeachment.  Art.  II,  sec.  4,  p.  423. 

May  be  impeached  for  wanton  removals.  431. 

His  right  to  judge  of  the  constitutionality  of  the  law.  478.  Is  vested  with  im- 
portant political  powers.  Id. 

The  President,  like  all  other  officers,  is  liable  to  have  his  acts  reviewed  by  the 
press.  482. 

When  the  right  to  vote  at  any  election  for  the  choico  of  electors  for  President 
and  Vice  President  of  the  United  States,  &c.  Art.  XIV,  sec.  2,  p.  488. 

President  pro  tempore.  Chosen  by  the  Senate.  P.  317,  cl.  5.  Further  list  of  the.  N. 
318.  The  contingencies  of  his  office.  N.  318,  pp.  318,  319. 

Press.  Congress  shall  make  no  law  abridging  the  freedom  of  speech  or  of  the  press. 
Art.  I,  p.  4GG.  The  reason  of  the  inhibition.  482.  It  is  a right  which  antedated 
the  Constitution.  Id.  The  four  things  which  it  embraces.  Id.  But  unre- 
strained speech  is  fatal  to  liberty,  and  it  is  not  innocent  because  it  is  not  muz- 
zled. Id. 

Prince.  No  person  holding  office  shall  accept  any  present,  &c.,  from  any.  Art.  I,  sec. 
9,  cl.  8,  p.  393. 

Private  Property.  Nor  shall  private  property  be  taken  for  public  use  without  just  com- 
pensation. Art.  V,  p.  470. 

Public  use  defined  and  explained.  489. 

Privilege.  The,  of  the  right  of  habeas  corpus  shall  not  be  suspended.  Art.  I,  sec.  9,  cl. 
2,  p.  386. 

Privileges.  The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and  immu- 
nities of  the  citizens  of  the  several  States.  Art.  IV,  sec.  2,  cl.  1,  p.  453.  The 
Supreme  Court  will  not  define  privileges  and  immunities  in  a general  classifica- 
tion. 469. 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  the  citizens  of  the  United  States.  Art.  XI V,  sec.  1,  p.  482.  The 
distinction  between  the  citizens  of  the  United  States  and  States  suggested.  502. 
The  clause  was  borrowed  from  the  articles  of  confederation.  Id.  The  terms 
defined  and  considered.  Id.  More  critically  considered.  503. 


INDEX 


633 


Privileges — Continued. 

The  manner  of  enforcement  would  depend  upon  the  character  of  the  privilege 
or  immunity  in  question.  503.  The  various  privileges  and  immunities  consid- 
ered. Id.  The  end  to  be  remedied  by  the  last  sentence.  504. 

Privleged  Question.  Action  upon  the  veto  of  the  President  is  privileged.  357. 

Proceedings.  Full  faith  and  credit  shall  be  given  to  the  judicial  proceedings  of  every 
State,  and  the  Congress  may  prescribe  the  mode  of  proof  and  effect.  Art.  IV, 
sec.  1,  p.  447. 

Proclamation.  President  may  pardon  by  general  proclamation.  417,  418. 

Profit  or  Trust.  No  person  holding  any  office  of,  shall  accept  any  present,  &c.,  from 
a foreign  power.  Art.  I,  sec.  9,  cl.  8,  p.  393. 

Progress.  Congress  has  power  to  promote  the  progress  of  science  and  useful  arts,  &c. 
Art.  I,  sec.  8,  cl.  8,  p.  365. 

Promissory  Notes.  Placed  on  the  same  footing  as  bills  of  exchange.  454,  456. 

Promotion.  The  President’s  power  over  appointments  is  subject  to  the  law  of  promo- 
tion. 381.  , 

Property.  No  person  shall  be  deprived  of  life,  liberty,  or  property  without  due  pro- 
cess of  law.  Art.  V,  p.  470.  This  means  judicial  process,  not  executive.  487. 
Due  process  of  law  Explained.  488.  The  inhibition  applies  only  to  the  United 
States  Government.  Id. 

Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law.  Art.  XIV,  sec.  1,  p.  482.  This  right  is  not  one  growing  out  of 
citizenship  of  the  United  States.  505. 

Proportion.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion  to 
the  census  or  enumeration  hereinbefore  directed  to  be  taken.  Art.  I,  sec.  9,  cl. 
4,  p.  392. 

In  what  proportion  representation  to  be  reduced.  Art.  XIV,  sec.  2,  p.  488. 

Prosecutions.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed.  Art.  VI,  p.  474.  Criminal  prosecutions  de- 
fined. 490.  The  limitations  by  this  power.  Id. 

Protection.  No  State  shall  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws.  Art.  XIV,  sec.  1,  p.  482.  The  clauses  apply  with  peculiar 
force  to  the  emancipated  race.  504.  The  slaughter-house  cases  criticised.  505. 

Protest.  Tax  paid  under,  may  be  recovered  in  assumpsit.  366. 

Provisional  Government.  The  rebellion  authorized  the  establishment  thereof.  377. 

Public  Debt.  The  validity  of  the  public  debt  of  the  United  States  authorized  by  law, 
including  debts  incurred  for  payment  of  pensions  and  bounties  for  services  in 
suppressing  insurrection  or  rebellion,  shall  not  be  questioned.  Art.  XIV,  sec. 
4,  p.  496. 

Public  Enemies.  Under  the  confiscation  act  of  1862  property  was  condemned  as  the 
property  of  public  enemies.  461. 

Public  Ministers.  The  President  has  power  to  appoint  ambassadors,  other  public 
ministers  and  consuls,  and  all  other  officers.  Art.  II,  sec.  2,  cl.  2,  p.  412. 

Public  Trial.  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial  by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed.  Art.  VI,  p.  474.  Criminal  prosecutions 
defined.  490.  The  limitations  by  this  power.  Id. 

Public  Trust.  No  religious  test  shall  ever  be  required  for  any  office  or  public  trust 
under  the  United  States.  Art.  VI,  cl.  3,  p.  464. 

Public  Use.  Nor  shall  private  property  be  taken  for  public  use  without  just  compen- 
sation. Art.  V,  p.  470.  Public  use  defined  and  explained.  489. 

Punish.  Each  House  may,  its  members  for  disorderly  behavior.  Art.  II,  sec.  5,  cl.  2, 
p.  353.  How  the  House  of  Commons  punished  Sir  Francis  Bendett.  349.  The 
House  has  not  general  criminal  jurisdiction.  349.  The  sentence  criticised.  Id. 
The  power  to  punish  those  not  members.  Id.  Pat.  Wood’s  case.  349,  p.  354. 
The  power  denied  as  to  local  Legislatures.  349,  p.  355.  The  great  case  of  Doyle 
v.  Falconer.  350.  Of  Joseph  B.  Stewart.  351.  Of  Anderson  v.  Dunn.  352. 

Punishment.  Further,  of  those  who  have  been  impeached.  Art.  I,  sec.  3,  cl.  7,  p.  330. 

Congress  has  the  power  to  provide  the  punishment  for  counterfeiting  the 
securities  and  current  coin  of  the  United  States.  Art.  I,  sec.  8,  cl.  6,  p.  365. 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason.  Art. 
Ill,  sec.  3,  cl.  2,  p.  443. 

Except  as  a punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted.  Art.  XIII,  sec.  1,  p.  478. 

Punishments.  Nor  cruel  and  unusual  punishments  inflicted.  Art.  VIII,  p.  476. 


634 


INDEX. 


Q. 

Qualification.  No  religious  test  shall  ever  be  required  as  a qualification  to  any  office 
or  public  trust  under  the  United  States.  Art.  VI,  cl.  3,  p.  464. 

Qualifications.  Difference  of,  when  the  Constitution  was  adopted.  299.  The  word 
“ white  ” stricken  out  by  the  fifteenth  amendment.  Id.  But  neither  amend- 
ment gave  the  right  of  suffrage  to  women.  Id. 

Of  electors  for  Representatives  the  same  as  for  the  most  numerous  branch  of 
the  State  Legislature.  Art.  I,  sec.  2,  cl.  1,  p.  303. 

Of  Representatives.  Art.  I,  sec.  2,  cl.  2,  p.  305.  Of  Senators.  Art.  I,  sec.  3,  cl. 
3.  Of  the  President  and  Vice  President.  Art.  II,  sec.  1,  cl.  4,  p.  404. 

Each  House  may  judge  of  the,  and  moral  fitness  of  its  members.  345. 

He  who  denies  them  has  the  burden  of  proof.  348. 

Quarantine.  The  States  may  enact  quarantine  laws,  but  they  must  not  extend  to  the 
levy  of  tonnage.  366.  Under  the  term  the  State  cannot  levy  a tonnage.  Id. 

Quorum.  A majority  of  each  House  shall  constitute  a quorum  to  do  business,  but  a 
smaller  number  may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner  and  under  such  penalties 
as  each  House  may  provide.  Art.  I,  sec.  5,  cl.  1,  p.  337.  * 

R. 

Race.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Art.  XV,  sec.  1,  p.  493. 

Ratification.  The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient  for 
the  establishment  of  this  Constitution  between  the  States  so  ratifying  it. 
Art.  VII,  p.  464. 

Rebellion.  When  rebellion  commenced  and  ended.  377. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended  unless  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it.  Art.  I,  sec. 
9,  cl.  2,  p.  386.  The  power  to  suspend  lies  with  Congress  only.  393. 

Except  for  participation  in  rebellion  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  to  the  number  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such 
State.  Art.  XII,  sec.  2,  p.  488. 

Who  shall  have  engaged  in  insurrection  or  rebellion  against  the  United  States 
or  given  aid  or  comfort  to  the  enemies  thereof.  Art.  XIV,  sec.  3,  p.  494.  This 
sentence  criticised  and  explained.  511. 

Pensions  and  bounties  for  services  in  suppressing  insurrection  or  rebellion 
shall  not  .be  questioned.  No  debt  for  insurrection  or  rebellion  shall  be  paid  by 
the  United  States  or  any  State.  Art.  XIV,  sec.  4,  p.  496. 

President  had  the  right  to  pardon  all  participants  by  general  proclamation. 
418. 

Receipts  and  Expenditures.  A regular  statement  and  account  of  the  receipts  and 
expenditures  of  all  public  money  shall  be  published  from  time  to  time.  Art.  I, 
sec.  9,  cl.  7,  p.  393. 

Recess.  Election  of  Senators  during  the  recess  of  the  Legislature.  Art.  I,  sec.  3,  cl.  2, 
p.  314,  n.  312-314. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  shall  happen  during 
the  recess  of  Congress  by  granting  commissions  which  shall  expire  at  the  end 
of  the  next  session.  Art.  II,  sec.  2,  cl.  3,  p.  417. 

Reciprocity.  Concerning  naturalization  and  extradition.  369. 

Records.  Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  And  the  Congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall 
be  proved,  and  the  effect  thereof.  Art.  IV,  sec.  1,  p.  447.  Notice  actual  or  con- 
structive is  necessary  to  a judgment.  462.  And  where  there  is  notice  faith  is  given 
to  judgments  for  divorce.  463.  If  the  court  refuse  to  respect  the  Judgment  it 
becomes  a Federal  question.  464.  The  general  principle  reviewed.  465.  The 
judgment  by  attachment  is  valid  as  to  property  sold  only.  Id.  But  there  must 
be  jurisdiction  over  the  subject  matter  of  the  suit.  466.  The  right  to  go  behind 
the  judgment  for  fraud  or  want  of  jurisdiction  fully  considered.  467. 

Regulation.  Congress  has  power  to  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces.  Art.  I,  sec.  8,  cl.  14,  p.  366. 

No  preference  shall  be  by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  State  over  those  of  another.  Art.  I,  sec.  9,  cl.  6,  p.  392. 


INDEX 


635 


Regulation—  Continued. 

No  person  held  to  service  or  labor  in  one  State  under  the  laws  thereof  escaping 
into  another  shall,  in  consequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  &c.  Art.  IV,  sec.  2,  cl.  3,  p.  456. 

Religion.  No  religious  test  shall  ever  be  required.  Art.  VI,  cl.  3,  p.  464.  Congress 
shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof.  Art.  I,  p.466.  The  full  extent  of  the  right  explained.  481. 

Removal.  In  case  of  removal,  &c.,  of  the  President,  who  shall  serve.  Art.  II,  sec.  1, 
cl.  5,  p.  404. 

The  distinction  between  removal  and  appointment.  425. 

Various  opinions  upon  the  power  to  remove.  429.  Tenure  of  office  law  at 
present.  430. 

The  President  may  be  removed  for  wanton  removals.  431. 

Representatives.  Qualifications  for.  Art.  I,  sec.  2,  cl.  2,  p.  305,  n.  300,  301.  States  cannot 
add  to  qualifications  of.  300.  Must  be,  bona  fide,  an  inhabitant.  301.  How  ap- 
portioned. Art.  I,  sec.  3,  cl.  3,  p.  302. 

House  of,  shall  choose  their  speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment.  Art.  I,  sec.  2,  cl.  5,  p.  311.  Explained.  310. 

Representatives  shall  be  apportioned  among  the  several  States  according  to 
their  respective  numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  Art.  XIV,  sec.  2,  p.  488.  The  numbers  and  appor- 
tionment according  to  the  ninth  census,  including  fractions.  506. 

When  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  Representatives  in  Congress,  &c.  Art. 
XIV,  sec.  2,  p.  488. 

No  person  shall  be  a Senator  or  Representative  in  Congress,  &c.,  who,  having 
taken  an  oath  as  a member  of  Congress,  &c.,  shall  have  engaged  in  insurrection 
and  rebellion,  &c.  Art.  XIV,  sec.  3,  p.  493. 

Reprieves  and  Pardons.  The  President  has  power  to  grant,  except  in  eases  of  impeach- 
ment. Art.  II,  sec.  2,  cl.  1,  p.  407. 

Reprisal.  Congress  has  power  to  grant  letters  of  marque  and  reprisal.  Art.  I,  sec.  8, 
cl.  11,  p.  366. 

Republican  Form  of  Government.  Representation  is  one  of  the  essentials.  475,  The 
right  of  reconstruction  results  from  the  guaranty  concerning.  476. 

Resignation.  Vacancies  may  happen  by  resignation,  death,  or  otherwise.  Art.  I,  sec. 
3,  cl.  2,  p.  314.  Of  Senators,  may  be  prospective.  313. 

In  case  of  the  resignation,  &c.,  of  the  President,  who  shall  serve.  Art.  II,  sec. 
1,  cl.  5,  p.  404. 

Respect.  With  respect  to  the  time  of  adjournment  in  case  of  disagreement,  the  Presi- 
dent may  adjourn  Congress.  Art.  II,  sec.  3,  p.  420. 

Return.  To  the  writ  of  habeas  corpus , and  the  action  upon  it.  391. x 

Revenue.  No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another.  Art.  I,  sec.  9,  cl.  6,  p.  392. 

Right.  Congress  shall  make  no  law  abridging  the  right  of  the  people  peaceably  to  as- 
semble and  petition  the  Government  for  a redress  of  grievances.  Art.  I.  p.  466. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States,  or  by  any  State,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.  Art.  XV,  sec.  1,  p.  496.  This  is  a negative  pregnant  with  an 
affirmative.  513.  It  confers  no  right,  but  is  an  inhibition.  Id.  It  destroys  all 
distinction  between  the  races  as  to  suffrage.  Id. 

Rights.  The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be  construed 
to  disparage  others  retained  by  the  people.  Art.  IX,  p.  477. 

Rules.  Congress  has  power  to  make  rules  concerning  captures  on  land  and  water. 
Art.  I,  sec.  8,  cl.  11,  p.  366. 

Congress  has  power  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces.  Art.  I,  sec.  8,  cl.  14,  p.  366. 

Of  proceedings,  to  be  determined  by  each  House.  Art.  I,  sec.  5,  cl.  2,  p.  353. 

. For  the  government  of  land  and  naval  forces.  381. 

Rules  and  Regulations.  Congress  has  power  to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United  States.  Art. 
IV,  sec.  3,  cl.  2,  p.  454. 

s. 

Safety.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when 
in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it.  Art.  I,  sec.  9, 
cl.  2,  p.  386. 


636 


INDEX 


Science.  Congress  has  the  power  to  promote  the  progress  of  science  and  useful  arts, 
&c.  Art.  I,  sec.  8,  cl.  8,  p.  365. 

The  protection  to  authors  and  inventors.  373.  Their  inventions  and  books 
exempt  from  forced  sale.  Id. 

Searches  and  Seizures.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects  against  unreasonable  searches  and  seizures  shall  not  be  vio- 
lated. Art.  IV,  p.  470. 

Secession.  Answer  to.  289,  p.  299.  * 

Had  no  effect,  and  notwithstanding  Georgia  remained  in  the  Union.  400. 

Security.  A well-regulated  militia  being  necessary  to  the  security  of  a free  State,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed.  Art.  II,  p.  469. 

Senate.  And  House  of  Representatives  compose  the  Congress.  Art.  I,  sec.  1,  p.  303. 

Composed  of  two  Senators  from  each  State  chosen  every  six  years.  Art.  I,  sec. 
3,  cl.  1,  p.  312.  By  the  legislature.  Id.  Legislature  defined.  311.  Cases  in  Ala- 
bama and  Louisiana,  Id. 

And  House  of  Representatives  observe  the  same  rules  in  regard  to  concurrent 
orders  and  resolutions  as  in  regard  to  bills.  Art.  I,  sec.  7,  cl.  3,  p.  363. 

The  President  has  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators  present  concur.  Art.  II, 
sec.  2,  cl.  2,  p.  412. 

Vice  President  shall  be  the  president  of  the.  Art.  I,  sec.  3,  cl.  4,  n.  317.  Shall 
choose  their  other  officers  and  also  president  pro  tempore.  P.  317,  cl.  5.  Its 
power  over  this  officer.  N.  318. 

Has  sole  power  to  try  all  impeachments.  Oath  of  presiding  officer.  P.  319,  cl.  6. 

Contest  in.  335.  Caldwell’s  case.  Id. 

Senators.  Two  from  each  State  chosen  by  the  Legislature  thereof  every  six  years.  Art. 
I,  sec.  3,  cl.  1,  p.  312.  How  classified.  P.  314,  cl.  2.  If  vacancies  happen.  Id.,  and 
notes  312-314. 

May  resign  prospectively.  313.  Qualifications  of.  P.  316,  cl.  3,  notes  315,  316. 

How  far  subject  to  the  will  of  the  people.  336,  p.  341. 

And  Representatives  shall  receive  a compensation,  &c.  Art.  I,  sec.  6,  cl.  1,  p. 
361.  Their  privilege  from  arrest.  Id.  Compensation  discussed.  354.  Privilege 
from  arrest  and  service  discussed.  355. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was  elected, 
be  appointed  to  any  civil  office,  &c.,  nor  shall  any  person  holding  office  be  at  the 
same  time  a Senator  or  Representative.  Art.  1,  sec.  6,  cl.  2,  p.  362,  n.  356. 

No  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  elector.  Art.  II,  sec.  1,  cl.  2, 
p.  400. 

And  Representatives  to  take  the  prescribed  oath.  Art.  VI,  cl.  3,  p.  464.  The 
form,  general  and  qualified.  480. 

No  person  shall  be  a Senator  or  Representative  in  Congress,  or  elector  of  Pres- 
ident and  Vice  President,  or  hold  any  office,  civil  or  military,  under  the  United 
States  or  under  any  State,  who,  having  taken  an  oath,  &c.,  shall  have  engaged  in 
rebellion,  &c.  Art.  XIV,  sec.  3,  p.  493.  The  oath.  510.  Shall  have  engaged  Jn 
rebellion  explained  and  criticised.  Id. 

Service.  Members  of  Congress  not  privileged  from  service  of  civil  process  if  no  arrest 
be  demanded,  and  are  not  subject  to  attachment  for  contempt.  355. 

The  President  shall  be  commander  in  chief  of  the  militia  when  in  the  actual 
service  of  the  United  States.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

Personal  and  in  rem.  456,  p.  440. 

No  persons  held  to  service  or  labor  in  one  State  under  the  laws  thereof  escap- 
ing into  another  shall,  in  consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered  up  on‘  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due.  Art.  IV,  sec.  2,  cl.  3,  p.  453. 

Or  in  the  militia  when  in  actual  service  in  time  of  war  or  public  danger.  Art. 
V,  p.  470. 

Services.  The  judges  shall  at  stated  times  receive  for  their  services  a compensation. 
Art.  Ill,  sec.  2,  p.  427. 

Servitude.  Involuntary  servitude,  &c.,  shall  not  exist.  Art.  XIII,  sec.  1,  p.  478.  This 
means  a personal  servitude.  497.  Full  consideration  of  the  subject.  Id. 

No  person  shall  be  deprived  of  voting  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Art.  XV,  sec.  1,  p.  496. 

Sessions.  Of  Congress,  to  commence  on  the  first  Monday  in  December.  P.  334,  cl.  2. 
Beginning  and  ending  of  sessions,  general  and  special.  333. 

By  granting  commissions,  which  shall  expire  at  the  end  of  their  next  session. 
Art.  II,  sec.  2,  cl.  3,  p.  417. 

Ships  of  War.  No  State  shall  keep,  in  time  of  peace.  Art.  I,  sec.  10,  cl.  3,  p.  397. 


INDEX 


637 


Slander.  The  common  law  never  punished  a verbal  slander  criminally.  482. 

Slave.  Neither  the  United  States,  nor  any  State,  shall  pay  any  claims  for  the  loss  or 
emancipation  of  any  slave;  but  all  such  debts,  obligations,  and  claims  shall  be 
held  illegal  and  void.  Art.  XIV,  sec.  4,  p.  496. 

Slavery.  No  amendments  prior  to  1808  to  affect.  Art.  V,  p.  459. 

Neither  slavery  nor  involuntary  servitude,  except  as  a punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  Art.  XIII,  cl.  1,  p.  478.  The 
effect  of  this  prohibition.  496.  Involuntary  servitude  considered.  497.  Had 
peculiar  reference  to  the  negroes.  Id.  The  views  of  Lincoln  and  Seward  upon 
the  subject.  498.  The  destruction  did  not  destroy  contracts.  499. 

Soldier.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the 
consent  of  the  owner,  nor  in  time  of  war,  but  in  a manner  to  be  prescribed  by 
law.  Art.  Ill,  p.  470. 

Sovereign  Power.  May  be  in  a de  facto  government.  384. 

Sovereignty.  Of  the  States,  extends  to  what.  404. 

Extends  to  all  persons,  things,  and  strangers  within  the  country.  418,  p.  411. 
Speaker.  Chosen  by  the  House.  P.  311,  cl.  5.  New  list  of.  310. 

Specification.  In  notices.  339.  The  things  intended  to  be  proved  should  be  clearly 
stated.  339. 

Speech.  For  any,  or  debate  in  either  House,  the  member  shall  not  be  questioned  in 
any  other  place.  Art.  I,  sec.  6,  cl.  1,  p.  361. 

Congress  shall  make  no  law  abridging  the  freedom  of  speech  or  of  the  press. 
Art.  I,  p.  466.  The  reason  of  the  inhibition.  482.  It  is  a right  which  antedated 
the  Constitution.  Id.  The  four  things  which  it  embraces.  Id.  But  unrestrained 
speech  is  fatal  to  liberty,  and  it  is  not  innocent  because  it  is  not  muzzled.  Id. 
Standard.  Congress  has  the  power  to  fix  the  standard  of  weights  and  measures.  Art. 

I,  seo.  8,  cl.  5,  p.  365. 

Stanton.  Secretary,  suspended.  321. 

State.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  Art.  I,  sec.  9, 
cl.  5,  p.  392. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to  the 

Eorts  of  one  State  over  those  of  another.  Art.  I,  sec.  9,  cl.  6,  p.  392.  Nor  shall  vessels 
ound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay  duties  in  another.  Id. 
No  person  holding  office  under  the  United  States  shall  accept  any,  &c.,  from  any 
foreign  State.  Art.  I,  sec.  9,  cl.  8,  p.  393. 

No  State  shall  enter  into  any  treaty,  or  do  nine  other  enumerated  things ; nor, 
without  consent  of  Congress,  lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  the  execution  of  its  inspection 
laws';  nor  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace  ; 
enter  into  an  agreement  or  compact  with  another  State,  or  with  a foreign  power, 
or  engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay.  Art.  I,  sec.  10,  els  1,  2,  3.  pp.  393-397. 

And  no  State  shall  enter  into  any  treaty,  alliance,  or  confederation,  &c.  Inhibi- 
tions upon.  Art.  I,  sec.  10,  els.  1,  2,  3,  pp.  383-399. 

Each,  in  its  own  manner,  shall  appoint  presidential  electors.  Art.  II,  sec.  1, 
cl.  2,  p.  400. 

Between  a State  and  citizens  of  another  State.  Art.  Ill,  sec.  2,  cl.  1,  p.  429. 
State  defined.  448.  Must  be^  a State  within  the  Union.  Id.  If  it  has  an  interest 
in  the  controversy  it  is  within  the  jurisdiction.  Id.  Cannot  impair  the  jurisdic- 
tion of  the  Federal  courts.  451. 

And  in  those  cases  in  which  a State  shall  be  a party,  the  Supreme  Court  shall 
have  original  jurisdiction.  Art.  Ill,  see.  2,  cl.  2,  p.  439.  And  in  no  others  except 
those  affecting  ambassadors,  other  public  ministers,  and  consuls.  457. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  Art  IV,  sec.  1,  p.  447. 

The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and  immunities 
of  the  citizens  of  the  several  States.  Art.  IV,  sec.  2.  cl.  1,  p.  452.  But  corporations 
are  not  citizens  within  the  meaning  of  this  clause.  468,  469. 

A person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another  State,  shall,  on  demand  of  the  execu- 
tive authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

No  person  held  to  service  or  labor  in  one  State  escaping  into  another,  shall  be 
discharged  from  such  service  or  labor.  Art.  IV,  sec.  2,  cl.  3,  p.  453. 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a republican  form 
of  government,  and  shall  protecteach  of  them  against  invasion.  Art.  IV,  sec.  4,  p. 
458.  The  President  had  the  right  to  establish  provisional  governments  for.  475. 


638 


INDEX. 


State — Continued.  * 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a speedy  and 
public  trial  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed.  Art.  VI,  p.  474. 

Nor  prohibited  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the 
people.  Art.  X,  p.  477. 

And  of  the  State  wherein  they  reside.  Nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law.  Art.  XIV,  sec.  1,  p 482. 

But  when  the  right  to  vote  is  denied  to  any  of  the  inhabitants  of  such  State, 
Ac.  Art.  XIV,  sec.  2,  pp.  488,  489,  n.  508. 

Or  hold  arty  office  under  any  State,  &c.  Art.  XIV,  sec.  3,  pp.  493,  494. 

Nor  shall  any  State  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  in- 
surrection or  rebellion,  &c.  Art.  XIV,  sec.  4,  p.  496. 

Are  citizens  of  the  United  States  and  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States.  Nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws.  Art.  XIV,  sec.  1,  p.  482.  Citizens  of.  the 
State  are  omitted.  501.  Privileges  and  immunities  fully  considered.  Id. 

When  the  right  to  vote  for  the  executive  and  judicial  officers  of  the  State,  &c. 
Art.  XIV,  sec.  2,  p.  488. 

No  person,  &c.,  who  having  previously  taken  an  oath,  Ac.,  shall  have  engaged 
in  rebellion,  Ac.  Art.  XIV,  sec.  3,  p.  493. 

But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt  or 
obligation  in  aid  of  insurrection  or  rebellion  against  the  United  States.  Art. 
XIV,  sec.  4,  p.  496. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous  condi- 
tion of  servitude.  Art.  XV,  sec.  1,  p.  496.  The  term  fully  explained.  513. 

State  Constitutions.  Must  be  in  subordination  to  the  Federal.  290. 

State  Courts.  Will  not  be  followed  where  a law  of  commerce  is  in  question.  388. 

Statement.  A regular  statement  and  account  of  the  receipts  and  expenditures  of  all 
public  money  shall  be  published  from  time  to  time.  Art.  I,  sec.  9,  cl  7,  p.  393. 

State  of  the  Union.  Shall  from  time  to  time  give  to  the  Congress  information  of  the 
state  of  the  Union.  Art.  II,  sec.  3,  p.  420. 

State  Rights.  As  defined  by  Georgia.  289. 

State  Rulings.  How  far  they  govern  the  Supreme  Court  of  the  United  States.  375. 

States.  Concurrent  powers  of.  288. 

The  right  to  determine  the  qualifications  of  electors  still  remains  with.  299. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the  several.  Art. 
I,  sec.  2,  cl.  3,  p.  305,  notes  302-308  ; Art.  XIV,  sec.  2,  p.  488. 

What  are,  for  apportionment.  305.  Which  may  be  included  in  the  Union.  306. 

Congress  has  power  to  regulate  commerce  among  the  several.  Art.  I,  sec.  8, 
cl.  3,  p.  365.  What  this  includes.  363-365.  Quarantine.  366.  Navigation.  367. 

Congress  has  the  right  to  regulate  commerce  among  the  several.  364.  This  in- 
cludes every  means  by  which  intercourse  and  trade  are  carried  on  within  them. 
Id.  The  question  of  power  has  always  been  difficult.  365.  States  cannot  tax 
passengers  going  through  or  out  of  them.  365. 

Reserving  to  the  States,  respectively,  the  appointment  of  the  officers  and  the  au- 
thority of  training  the  militia,  according  to  the  discipline  prescribed  by  Congress. 
Art.  I,  sec.  8,  cl.  16,  p.  366. 

The  right  to  commission  their  military  officers  is  a guaranty  in  favor  of  liberty. 
382.  The  migration,  Ac.,  as  any  of  the  States,  Ac.  Art.  I,  sec  9,  cl.  1,  p.  366. 

As  may,  by  cession  of  particular  States,  become  the  seat  of  government;  and 
to  exercise  like  authority  over  all  places  purchased  by  the  consent  of  the  Legis- 
lature of  the  State,  &c.  Art.  I,  sec.  8,  cl.  17,  p.  366.  Their  power  to  tax.  359,  p.  368. 

Cannot  levy  a tonnage  tax  in  the  name  of  quarantine.  366. 

The  President  shall  be  commander  in  chief  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States.  Art.  II,  sec.  2,  cl.  1,  p. 
407. 

Between  citizens  of  the  same  State  claiming  lands  under  grants  of  different 
States.  Art.  Ill,  sec.  2,  cl.  1,  p.  429.  And  between  a State  or  the  citizens  thereof 
and  foreign  States,  citizens,  or  subjects.  Art.  Ill,  sec.  2,  cl.  1,  p.  429. 

To  controversies  between  two  or  more  States.  Art.  Ill,  sec.  2,  cl.  1,  p.  429.  The 
question  of  boundary  between  two  States  is  within  this  jurisdiction.  447. 

Guaranty  against  dismemberment  to  create  new  States.  Art.  IV,  sec.  3,  cl.  1,  p.  454. 

New  States  may  be  admitted  by  the  Congress  into  this  Union,  under  certain 
restrictions.  Art.  IV,  sec.  3,  cl.  1,  p.  454. 


INDEX, 


639 


States — Continued. 

Three-fourths  necessary  to  ratify  amendments  to  the  Constitution.  Art.  V,  p. 
459. 

The  judges  are  bound  by  the  supreme  law,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding.  Art.  VI,  cl.  2,  p.  460. 

States  ratifying  the  Constitution.  Art.  VII,  p.  8,  464. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 
Art.  X,  p.  477.  The  Constitution  was  not  framed  merely  to  guard  against  danger 
from  abroad,  but  chiefly  to  secure  union  and  harmony  at  home.  495.  Many  of 
the  rights  of  sovereignty  which  the  States  possess  were  ceded  to  the  General 
Government.  Id. 

Representatives  shall  be  apportioned  among  the  several  States  according  to 
their  respective  numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  Art.  XIV,  sec.  2,  p.  488.  The  numbers  and  appor- 
tionment according  to  the  ninth  census,  including  fractions.  506. 

Numbers  of  inhabitants  and  their  representatives  by  the  ninth  census.  506. 
Those  entitled  by  virtue  of  fraction.  506. 

Statutes.  About  elections,  are  but  directory.  342,  p.  347. 

Subjects.  And  between  a State  or  the  citizens  thereof  and  foreign  States,  citizens,  or 
subjects.  Art.  Ill,  sec.  2,  cl.  1,  p.  429. 

Suffrage.  Qualifications  for,  still  remain  with  the  States,  subject  to  the  amendments. 
299. 

When  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  Representatives  in  Congress,  &c.,  shall 
be  denied,  the  basis  of  representation  shall  be  reduced  in  a corresponding  ratio. 
Art.  XIV,  sec.  2,  p.  488.  No  reduction  has  yet  been  made.  507. 

Suits.  In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a jury 
shall  be  otherwise  re-examined  in  any  other  court  of  the  United  States  than  ac- 
cording to  the  rules  of  the  common  law.  Art.  VII,  p.  476.  This  article  explained. 
492,  493. 

Sumner.  His  views  on  the  powers  and  duties  of  a presiding  officer.  317,  323. 

Sunday  Laws.  The  first  amendment  does  not  prohibit  the  States  preventing  the  dis- 
turbance of  worship  on  Sunday.  481. 

Supersedeas.  Bond  for,  how  executed.  456,  p.  441. 

Supreme  Court.  Congress  has  the  right  to  constitute  tribunals  inferior  to  the.  Art.  I, 
sec.  8,  cl.  9,  p.  366. 

The  judges  both  of  the  Supreme  and  inferior  courts  shall  hold  their  offices  dur- 
ing good  behavior,  &c.  Art.  Ill,  sec.  1,  p.  427. 

The  judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme  Court. 
Art.  Ill,  sec.  l,p.  427.  History  of  the  Supreme  Judges  since  the  first  edition.  436. 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  &c.,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all  other  cases  (cl.  2)  it  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  may  make.  Art.  Ill,  sec.  2,  cl.  2,  p.  439. 

Supreme  Law.  Defined.  478.  Art.  VI,  el.  2,  p.  460.  No  legislative  act  contrary  to  the  Con- 
stitution is  valid.  478. 

Suspended.  The  right  to  suspend  the  writ  of  habeas  corpus  belongs  entirely  to  Congress 
393. 


T. 


Tax.  If  paid  under  protest,  may  be  recovered  in  assumpsit.  366. 

Or  duty  may  be  imposed  on  such  importation  (slaves)  not  exceeding  ten  dol- 
lars for  each  person.  Art.  I,  sec.  9,  cl.  1,  p.  386. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State.  Art.  I,  sec.  9, 
cl.  5,  p.  392. 

Taxation.  Must  not  destroy  the  instrumentalities  of  the  Government.  404.  Imported 
merchandise  is  subject  to.  405. 

Taxes.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
&c.  Art.  I,  sec.  8,  cl.  1,  p.  365.  No  language  could  be  more  comprehensive.  358. 
What  the  States  can  and  cannot  tax.  358,  359.  Taxes  do  not  come  within  the 
ordinary  definition  of  debts.  358.  What  may  be  taxed.  359.  But  all  should  be 
uniform  throughout  the  United  States.  Id. 

Certain  subjects  of  taxation  are  withdrawn  from  the  States  by  implication.  404. 

Tellers.  The  rule  concerning,  in  counting  the  presidential  vote.  410. 


640 


INDEX 


Tender.  No  State  shall  make  anything  but  gold  and  silver  coin  a tender  in  payment 
of  debt.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Tenure  of  Office.  The  Secretary  of  War  not  included  by  the  act  of  1867.  423. 

The  state  of  the  law  of,  at  present.  430. 

Term.  No  appropriation  for  the  use  of  the  army  shall  be  for  a longer  term  than  two 
years.  Art.  I,  sec.  8,  cl.  12,  p.  366.  Defined.  409. 

Territories.  Are  not  States  for  the  purpose  of  representation.  306.  But  have  always 
been  allowed  representatives.  306.  Must  always  be  organized  under  act  of  Con- 
gress. 306.  New  Mexico  did  not  remain  so  after  its  transfer.  306. 

The  number  of  inhabitants  by  the  ninth  census  of  the  Territories.  506. 

Territory.  Congress  has  power  to  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United  States.  Art.  IV,  sec.  3,  cl. 

. 2,  p.  454.  The  disposal  must  be  left  to  the  discretion  of  Congress.  471.  Territory 
as  a government  considered.  472.  A careful  historical  review  concerning.  473. 
Original  plan  of  organization.  473,  p.  455. 

The  acquisition  of  Louisiana.  P.  455.  The  jurisdiction  of  territorial  courts.  4731 
p.  456.  Legislative  power  of  the  Territories.  453,  pp.  456,  457.  Dates  of  the 
organization  of  all  of  them.  453,  p.  457.  The  appointment  of  judges  for.  453,  p.457, 

Test.  No  religious  test  shall  ever  be  required.  Art.  VI,  cl.  3,  p.  464. 

Testimony.  No  person  shall  be  convicted  of  treason,  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open  court.  Art.  Ill,  sec.  3, 
cl.  1,  p.  443. 

Test  oath.  Resolution  concerning,  as  to  members.  346.  Effect  of  voting  for  those 
who  cannot  take  it.  346.  Qualified,  for  those  who  cannot  take  it.  486. 

Theory.  Of  the  Government  as  to  the  choice  of  magistrates.  336. 

Time.  The  military  governor  had  no  power  to  change  the  time  for  elections.  331. 

Acts  required  to  be  done  within  a certain,  are  only  directory.  341. 

With  respect  to  the  time  of  adjournment  in  case  of  disagreement,  the  President 
may  adjourn  Congress.  Art.  I,  sec.  3,  p.  420. 

Time  of  Peace.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without 
the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a manner  to  be  prescribed 
by  law.  Art.  Ill,  p.  470. 

Times.  Places  and  manner  of  holding  elections  prescribed  by  the  States  subject  to 
change  by  Congress.  When  prescribed  by  the  military  governor.  Art.  I,  sec.  4, 
cl.  1,  p.  331.  Note  upon  times  and  places.  329.  Manner  of  holding.  329,  p.  332. 
What  Legislature  can  prescribe.  330.  Power  of  conventions  as  to.  330. 

Congress  may  secure  for  limited  times  to  authors  and  inventors  exclusive  right 
to  their  respective  writings  and  discoveries.  Art.  I,  sec.  8,  cl.  8,  p.  365. 

The  President  shall  at  stated  times  receive  for  his  services  compensation. 
Art.  II,  sec.  1,  cl.  6,  p.  405.  This  means  that  the  time  is  fixed  by  law.  413. 

The  judges  shall  at  stated  times  receive  for  their  services  a compensation. 
Art.  Ill,  sec.  2,  p.  427. 

Title.  No  person  holding  office  shall  accept  any,  from  a foreign  power.  Art.  I,  sec.  9, 
cl.  8,  p.  393. 

Tonnage.  The  States  cannot  levy.  Defined.  366. 

The  duty  of,  shall  not  be  laid  by  States  without  the  consent  of  Congress.  Art.  I, 
sec.  10,  cl.  3,  p.  397.  Tonnage  defined.  407. 

State  laws  which  lay,  are  unconstitutional.  407./ 

Town  or  County  Bonds.  If  "they  have  been  issued  and  circulated  the  question  becomes 
commercial.  388. 

Transfer  of  Causes.  Under  the  judiciary  acts  transfer  of  causes  does  not  depend  upon 
State  legislation.  451.  Has  grown  out  of  the  relations  between  citizens  of  diner- 
ent  States.  452.  The  different  acts  of  Congress  upon  the  subject,  id.  The  local 
prejudice  act  of  1867  considered.  Id.  It  is  not  limited  by  the  character  of  the 
controversy  nor  of  the  State  tribunal.  Id.  The  court  has  only  to  consider  the 
affidavit,  residence,  and  amount  in  controversy,  and  the  application  may  be  made 
at  any  time  before  trial.  453.  The  right  to  transfer  is  broader  than  in  bringing 
the  original  action.  454.  Transfer  on  account  of  character  of  the  controversy.  455. 

Treason.  Felony  and  breach  of  the  peace  not  among  the  privileges  from  arrest.  Art. 
I,  sec.  6,  cl.  1,  p.  361. 

All  civil  officers  of  the  United  States  shall  be  removed  from  office  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. Art.  II,  sec.  4,  p.  423. 

Treason  against  the  United  States  shall  consist  in  levying  war  against  them, 
or  adhering  to  their  enemies,  giving  them  aid  and  comfort.  No  person  shall  be 
convicted  of  treason  but  on  the  testimony  of  two  witnesses  to  the  same  overt  act, 
or  upon  confession  in  open  court.  Congress  shall  have  power  to  punish  treason, 
but  treason  shall  not  work  corruption  of  blood  except  during  the  life  of  the  person 
attainted.  Art.  Ill,  sec.  3,  els.  1,  2, p.443.  Forfeiture  defined  and  reviewed.  461. 


INDEX 


641 


Treason — Continued . 

A person  charged  in  any  State  with  treason,  felony,  or  other  crime,  &c.,  shall 
be  delivered  up.  Art.  IV,  sec.  2,  cl.  2,  p.  453. 

Treasury.  No  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations made  by  the  law.  Art.  I,  sec.  9,  cl.  7,  p.  393. 

Treasury  Notes.  And  bank  notes,  are  bills  of  credit.  362.  The  amounts  issued  under 
different  acts  of  Congress.  Id. 

Treaties.  The  President  has  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators  present  concur.  Art.  II, 
sec.  2,  cl.  2,  p.  412. 

The  Constitution,  laws,  and  treaties  shall  be  the  supreme  law  of  the  land.  Art. 
VI,  cl.  2,  p.  460.  Coucerning  naturalization  and  extradition.  369.  They  are 
supreme  over  the  constitutions  and  laws  of  the  States.  Id.  They  may  be  abol- 
ished or  changed  by  law  of  Congress.  Id. 

Treaties  defined.  479. 

Treaty.  Of  Guadalupe  Hidalgo,  as  to  New  Mexico.  298. 

No  State  shall  enter  into  any.  Art.  I,  sec.  10,  cl.  1,  p.  393. 

Trial.  Of  those  who  have  been  impeached.  Art.  I,  sec.  3,  cl.  7,  p.  330,  n.  328. 

The  trial  of  all  crimes,  excepting  in  cases  of  impeachment,  shall  be  in  the 
State  where  the  crime  shall  have  been  committed,  and  when  not  committed  in 
any  State,  the  trial  shall  be  at  such  place  or  places  as  Congress  may  by  law  have 
directed.  Art.  Ill,  sec.  2,  cl.  3,  p.  443. 

Tribunals.  Congress  has  the  right  to  constitute  tribunals  inferior  to  the  Supreme 
Court.  Art.  I,  sec.  8,  cl.  9,  p.  366,  n.  374* 

Inferior  to  the  Supreme  Court.  374. 

Troops.  No  State  shall  keep,  in  time  of  peace.  Art.  I,  sec.  10,  cl.  3,  p.  397. 


u. 


Union.  In  order  to  form  a more  perfect,  preamble.  P.  300.  Explained  and  defined. 
292.  Never  was  dissolved.  Id.  What  Texas  assumed  as  a member  of.  Id. 
States  which  may  be  included  within  this.  306. 

Notwithstanding  secession,  Georgia  remained  in  the  Union.  400. 

Defined.  427. 

United  States  shall  guarantee  to  every  State  in  this  Union  a republican  form  of 
government.  Art.  IV,  sec,  4,  p.  458,  n.  475. 

United  States.  We,  the  people  of,  in  order  to  form  a more  perfect  Union,  &c.,  pream- 
ble. P.  300. 

The  Congress  of  the.  Art.  I,  sec.  1,  p.  303. 

To  be  a Representative  must  be  a citizen  of,  seven  years.  Art.  I,  cl.  2,  p.  305. 
Citizenship  of,  for  Senators.  Art.  I,  sec.  3,  cl.  3,  n.  316.  Vice  President  of  the. 
Cl.  4,  n.  317. 

When  the  President  of  the,  is  tried,  the  chief  justice  shall  preside.  Art.  I,  sec. 
3,  cl.  6,  p.  319,  n.  323. 

General  welfare  of  the;  duties  must  be  uniform  throughout  the;  to  borrow 
money  on  the  credit  of  the;  naturalization  and  bankruptcies  throughout  the; 
counterfeiting  the  securities  and  current  coin  of  the.  Art.  I,  sec.  8,  cl.  1-6,  p.  365. 

Congress  may  provide  for  the  governing  of  such  part  of  militia  as  may  be 
employed  in  the  service  of  the  United  States,  and  may  prescribe  the  discipline. 
Art.  I,  sec.  8,  cl.  16,  p.  366. 

As  shall  become  the  seat  of  Government  of  the  United  States.  Art.  I,  see.  8,  cl. 
17,  p.  366. 

And  all  other  power  vested  by  this  Constitution  in  the  Governmemt  of  the 
United  States,  or  any  department  or  officer  thereof.  Art.  I,  sec.  8,  cl.  18,  p.  367. 

No  Senator,  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States  shall  be  appointed  an  elector.  Art.  II,  sec.  1,  cl.  2,  p.  400. 

The  President’s  oath  to  preserve,  defend,  and  protect  the  Constitution  of  the. 
Art.  II,  sec.  1,  cl.  7,  p.  406. 

The  President  shall  be  commander  in  chief  of  the  militia  when  called  into  the 
actual  service  of  the  United  States.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

The  President  has  power  to  grant  reprieves  and  pardons  for  offenses  against 
the  United  States,  except  in  cases  of  impeachment.  Art.  II,  sec.  2,  cl.  1,  p.  407. 

The  President  shall  commission  all  officers  of  the  United  States.  Art.  II,  sec. 
3.  p.  420. 

The  President,  Vice  President,  and  all  civil  officers  of  the  United  States,  shall 
be  removed  from  office  o*n  impeachment  for,  and  conviction  of  treason,  bribery, 
or  other  crimes  and  misdemeanors.  Art.  II,  sec.  4,  p.  423. 


642 


INDEX 


» 

United  States—  Continued. 

The  judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme  Court, 
&c.  Art.  Ill,  sec.  1,  p.  427. 

To  controversies  to  which  the  United  States  shall  be  a party.  Art.  Ill,  sec.  2, 
cl.  1,  p . 429. 

Treason  against  the  United  States  shall  consist  in  levying  war  against  them, 
or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason,  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court.  The  Congress  shall  have  power  to 
declare  the  punishment  of  treason;  but  no  attainder  of  treason  shall  work  cor- 
ruption of  blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted. 
Art.  Ill,  sec.  3,  cl.  1,  2,  p.  443.  The  forfeiture  defined  and  reviewed.  461. 

Shall  guarantee  to  every  State  in  the  Union  a republican  form  of  Government, 
and  shall  protect  them  against  invasion.  Art.  IV,  see.  4,  p.  458.  A State  defined 
in  this  connection.  474.  Republican  Government  considered.  475.  Congress 
may  select  the  choice  of  means.  475.  Reconstruction  resulting  from  this 
clause.  Id. 

The  validity  of  the  debts  of  the  confederation.  Art.  VI,  cl.  1,  p.  459. 

All  officers.  State  and  Federal,  are  required  to  take  an  oath  to  support  the  Con- 
stitution of  the  United  States,  but  no  religious  test  shall  ever  be  required.  Art. 
VI,  cl.  3,  p.  464. 

No  fact  tried  by  a jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States  than  according  to  the  rules  of  the  common  law.  Art.  VII,  p.  476. 
These  ten  amendments  are  limitations  upon  the  power  of  the  Federal  Govern- 
ment, and  not  upon  the  States.  493. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohib- 
ited by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 
Art.  X,  p.  477.  The  landmarks  between  the  United  States  and  State  Governments 
considered.  495. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of  anv  foreign  State.  Art. 
XI,  p.  478. 

Neither  slavery  nor  involuntary  servitude,  &c.,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  Art.  XIII,  cl.  1,  p.  478.  This 
had  peculiar  reference  to  the  negro  race.  497. 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States.  Art.  XIV.  see..  1,  p.  482. 

No  person  shall  hold  any  office,  civil  or  military,  under  the  United  States,  or 
under  any  State,  who,  having  previously  taken  an  oath,  &c.,  shall  have  engaged  in 
rebellion.  Art.  XIV,  sec.  3,  p.  493. 

The  validity  of  the  public  debt  of  the  United  States,  &c.,  but  neither  the  United 
States,  nor  any  State,  shall  assume  or  pay  any  debt  or  obligation  in  aid  of  insur- 
rection or  rebellion  against  the  United  States.  Art.  XIV,  sec.  4,  p.  496. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States,  or  by  any  State,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.  Art.  XV,  sec.  1,  p.  496.  The  terms  fully  explained.  513. 

Use.  No  appropriation  for  the  use  of  the  army  shall  be  for  a longer  term  than  two 
years.  Art.  I,  sec.  8,  cl.  12,  p.  366. 


V. 

Vacancies.  Which  happen  in  the  representation  from  States.  Art.  I,  sec.  2,  cl.  4.  p.  310, 
n.  309. 

Of  Senators,  how  filled  during  the  recess  of  the  Legislature.  Art.  I,  sec.  3,  cl.  2, 
p.  314,  n.  312-314. 

The  President’s  power  over,  is  subject  to  the  law  of  promotion.  381. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen  during 
the  recess  of  the  Senate  by  granting  commissions  which  shall  expire  at  the  end 
of  the  next  session.  Art.  II,  sec.  2,  cl.  3,  p.  417. 

The  several  acts  concerning.  425.  The  three  theories  with  respect  to  the 
power  to  create.  Id.  The  repealing  acts.  Id 

There  are  no  restrictions  upon  the  power  of  the  President  to  fill.  426. 

Validity.  The  validity  of  the  public  debt  of  the  United  States  authorized  by  law,  in- 
cluding debts  incurred  for  payment  of  pensions  and  bounties  for  services  in  sup- 
pressing insurrection  or  rebellion,  shall  not  be  questioned.  Art.  XIV,  sec.  4,  p.  496. 


INDEX 


643 


Value.  Congress  has  the  power  to  regulate  the  value  of  domestic  and  foreign  coin. 
Art.  I,  sec.  8,  cl.  5,  p.  365. 

Where  the  value  in  controversy  shall  exceed  twenty  dollars  the  right  of  trial 
by  jury  shall  be  preserved.  Art.  VII,  p.  470. 

Vessels.  Nor  shall,  bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay  duties 
in  another.  Art.  I,  sec.  9,  cl.  6,  p.  392. 

License  for  navigable  waters  of  ten  tons  burden.  366. 

Veto.  The  full  text  of  the  Constitution  in  regard  to  objections.  Art.  I,  sec.  7,  cl.  2,  p. 
* 363.  The  practice  upon  the  veto.  357. 

Vice  President.  Of  the  United  States  shall  be  President  of  the  Senate,  but  shall  have 
no  vote  unless  equally  divided.  Art.  I,  sec.  3,  cl.  4,  p.  316.  His  power  limited  to 
presiding.  317.  Effect  of  the  death  of.  318.  Those  who  have  died  in  office. 
318.  Further  list  of.  N.  317,  p.  317. 

Shall  be  elected  with  the  President.  Art.  II,  sec.  1,  cl.  1,  p.  398. 

Shall  be  chosen  by  electors  with  the  President;  but  if  the  electors  fail  to 
choose,  then  the  Senate  shall  choose.  Art.  XII,  els.  1,  2,  pp.  401,  402.  But  no  per- 
son constitutionally  ineligible  to  the  office  of  President  shall  be  eligible  to  that 
of  Vice  President  of  the  United  States.  Art.  XII,  cl.  3,  p.  402. 

When  the  powers  and  duties  of  the  President  devolve  upon  him.  Art.  II,  sec. 
1,  cl.  5,  p.  404.  If  there  be  neither  President  nor  Vice  President.  Id. 

Not  only  the  powers  and  duties  but  the  office  of  President  devolves  upon  him. 
411. 


The  President,  and  Vice  President,  and  all  civil  officers  of  the  United  States 
shall  be  removed -from  office  on  impeachment.  Art.  II,  sec.  4,  p.  423. 

Violence.  On  the  application  of  the  Legislature,  &c.,  the  United  States  shall  protect 
each  State  against  domestic  violence.  Art.  IV,  sec.  4,  p.  458. 

Vote.  Each  Senator  has  one.  Art.  I,  sec.  3,  cl.  1,  p.  312. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States,  or  by  any  State,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.  Art.  XV,  sec.  1,  p.  496.  Does  not  confer  the  right  to  vote 
upon  any  one  but  only  destroys  the  distinction  of  race.  513. 

Voters.  Indians  in  their  tribal  relations  not  voters.  298. 

Where  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  &c.  Art.  XIV,  sec.  2,  p.  488. 

Votes.  Are  taken  and  counted  for  President  and  Vice  President.  Art.  XII,  cl.  1,  p. 
401.  The  person  having  the  greatest  number  to  be  President  and  Vice  Presi- 
dent. Id.,  els.  1,  2.  If  the  electoral  college  fail  to  choose,  the  House  shall  choose 
the  President,  each  State  counting  one  vote,  and  the  Senate  shall  choose  the 
Vice  President.  Id.,  els.  1,  2. 

Number  requisite  for  President  and  Vice  President  in  1876.  409.  The  prece- 
dents for  counting  and  excluding  the  votes  for  President.  410. 


w. 


War.  Congress  has  power  to  declare  war.  Art.  I,  sec.  8,  cl.  11  p.  366. 

The  late  rebellion  was  a civil  war.  376.  To  authorize  the  establishment  of 
provisional  government.  377.  When  the  rebellion  commenced  and  ended.  377. 
The  rights  of  citizens  in  the  loyal  States  against  those  of  the  disloyal.  377.  Laws 
of  nations  must  be  recognized  as  governing.  378.  Property  in  the  insurgent 
States  divided  into  four  classes.  378.  Rights  to  captured  and  abandoned  prop- 
erty during.  378. 

No  State  shall,  without  the  consent  of  Congress,  keep  troops,  or  ships  of  war, 
or  engage  in  war,  unless  actually  invaded  or  in  such  imminent  danger  as  will  not 
admit  of  delay.  Art.  I,  sec.  10,  cl.  3,  p.  397. 

Treason  may  consist  in  levying  war  against  the  United  States  or  adhering  to 
their  enemies,  giving  them  aid  and  comfort.  Art.  Ill,  sec.  3,  cl.  1,  p.  443. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the  con- 
sent of  the  owner,  nor  in  time  of  war,  but  in  a manner  to  be  prescribed  by  law. 
Art.  Ill,  p 470. 

Or  in  the  militia  when  in  actual  service  in  time  of  war  or  public  danger.  Art. 
V,  p.  470. 

War  Among  the  States.  By  A.  H.  Stephens.  289,  290. 

Warrants.  No  warrants  shall  issue,,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized.  Art.  IV,  p.  470. 

Washington."  Form  of  his  commission  as  commander  in  chief.  415. 

Water.  Congress  has  power  to  make  rules  concerning  captures  on  land  and  water. 
Art.  I,  sec.  8,  cl.  11,  p.  366. 


644 


INDEX 


Webster,  Noah.  Author  of  idea.  200. 

Weights.  Congress  has  power  to  fix  the  standard  of  weights  and  measures.  Art.  I, 
' see.  8,  cl.  5,  p.365. 

West  Virginia.  History  of  its  creation,  &c.  447. 

Witness.  No  person  shall  be  compelled  in  any  criminal  case  to  be  a witness  against 
himself.  Art.  V,  p.  470. 

Witnesses.  No  person  shall  be  convicted  of  treason,  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  upon  confession  in  open  court.  Art.  Ill,  sec. 
3,  cl.  1,  p.  443.  ~ 

The  accused  shall  be  confronted  with  the  witnesses  against  him,  and  shall 
have  compulsory  process  for  obtaining  witnesses  in  his  favor.  Art.  VI,  p.  474. 

Women.  Not  given  suffrage  by  the  constitutional  amendments.  299. 

Are  persons  and  citizens  of  the  United  States,  but  they  are  not  thereby  entitled 
to  vote  until  the  States  shall  give  them  that  power.  502,  p.  485. 

Writings.  Congress  may  secure  for  limited  times  to  authors  exclusive  right  to  their 
writings.  Art.  I,  sec.  8,  cl.  8,  p.  365. 


